DAILY NEWS Jan 16, 2013 10:07 AM - 7 comments

Ontario appeal board upholds caution issued to IME in auto claim

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By: Greg Meckbach, Associate Editor
2013-01-16

The Ontario Health Professionals Appeal and Review Board recently confirmed a decision by a committee of the College of Physicians and Surgeons of Ontario (CPSO) to caution an independent medical examiner who made what it called an "inadequate and inaccurate" report in an auto insurance claim on behalf of State Farm Mutual Automobile Insurance Company.

Medical

Last Friday, the board published its decision, identifying the doctor only as K.I. and the claimant as L.K. Doctor K.I., an IME retained by State Farm, had been issued a caution by the Inquiries, Complaints and Reports Committee of CPSO, which ruled that she failed to comply with CPSO's policy on third-party reports.

That policy stipulates that when providing such a report, physicians must "take reasonable steps to ensure that they have obtained and reviewed all available clinical notes, records and opinions relating to the patient or examinee that could impact the findings of the report" and should ensure the information is accurate.

"The (IME) report indicates that the (claimant) was backing out of her driveway and was hit by an oncoming car, while the information before the Committee indicated that the (claimant) was hit by a car backing out of a driveway," the board noted in a report.. "The report omitted the fact that the police were called, the car was damaged to the extent that it had to be towed away and was written off, which the Committee wrote, 'speaks to the extent of the motor vehicle accident.'"

CPSO only names doctors who have been subject to disciplinary proceedings, and not those who have been issued cautions. The college is mandated by Ontario's Regulated Health Professions Act to provide specific information on doctors, including restrictions on doctors' licences. However, CPSO has said the outcomes of complaints investigations that do not result in a referral to discipline are not, by law, public information.

The Ontario Health Professionals Appeal and Review Board, which has jurisdiction over the 28 regulated health professions in the province, has the power to confirm all or part of a decision of the CPSO Inquiries, Complaints and Reports Committee. It can assess the reasonableness of a decision or adequacy of an investigation, but it does not award money or damages, nor may it conduct its own investigation once a committee issues its decision. The board does not have the power to require that the committee make a finding of misconduct or incompetence against a doctor.

In the case of Dr. K.I., she was issued a caution by CPSO, which she appealed to the board, which ruled Jan. 11 that the caution was "reasonable."

"The Board notes that a caution is not a sanction. It is remedial in nature."

In background information published in its report, the appeal board noted that L.K. was in a collision Nov. 1, 2010, and that State Farm retained Dr. K.I. as an IME.

L.K.'s family doctor "felt that a referral for psychological services was indicated," according to the board's decision, but the IME did not. In her report, dated May 5, 2011, Dr. K.I. "referred only to a physiotherapy report written shortly after the accident and did not discuss any of the other 37 documents in the file, including the opinions of the (the claimant's) physician and other health professionals that an assessment was required," according to the board, which said the CPSO committee's ruling that the IME failed "to take reasonable steps to ensure that they have obtained and reviewed all available clinical notes records and opinions" was "reasonable."

Dr. K.I. also based her appeal on the contention that L.K. "should have raised her concerns with the (IME) report under the mediation and arbitration processes provided under the Insurance Act and that the College (of Physicians and Surgeons) is the wrong forum for the determination of her concerns."

Collision

The board noted that Dr. K.I.'s lawyer "submitted that having determined the (IME) was properly qualified, the Committee should defer to her expertise," adding: "if the College engages in the review of third party assessment undertaken by qualified health professionals, it will deter physicians from conducting assessments."

But the board ruled that the central issue before the CPSO committee was whether the doctor's conduct met professional standards.

Late November, the Ontario Automobile Insurance Anti-Fraud Task Force Steering Committee recommended that the province require insurers to disclose publicly how they choose and assess the performance of businesses and professionals they recommend or refer consumers to see, such as IMEs. The task force also recommended that insurers be allowed to collect a cancellation fee of $500 for claimants who fail to attend a scheduled appointment after agreeing to do so, if they fail to provide "adequate notice" or a "reasonable explanation."



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