by Scott NicolI, Trevor Armstrong and Robert Burns
Lawyers, Hamilton Duncan Armstrong & Stewart Law Corporation
You are a Registered Massage Therapist. You are a health-care professional with a unique and extensive knowledge of a patient’s injuries and their recovery process. As such, you may be subpoenaed to court (or administrative tribunals) as a witness for one side or the other. While it is most likely that you would be called as a witness in a personal injury action, you may be called in any kind of litigation where your knowledge of someone’s injuries may be relevant. At the recent MTABC AGM held at the Sheraton Guildford in Surrey, we gave a presentation to RMTs about what we think are the Do’s and Don’ts that you should follow (or will wish you had followed) if you’re ever involved as a witness in litigation.
DO UNDERSTAND YOUR ROLE IN THE LITIGATION PROCESS
· Do know why you are being called as a witness. You are being called in your capacity as a professional with evidence to assist the judge or jury to make decisions (e.g. compensation for injuries sustained). In certain cases, professional witnesses are called as expert witnesses and can give their opinions about issues in the case. While medical doctors are often qualified as experts, RMTs generally are not. Nonetheless, it is important to determine if you will be called as an expert witness so that you can prepare for questions regarding your qualifications. (The College of Family Physicians website provides some useful explanations and advice on the court process at www.cfpc.ca/cfp/2oo7/Jan/vo153-ja nclinicalreview-dalby.asp.)
DO KNOW WHO CAN SEE YOUR RECORDS
· Throughout the entire litigation process, you need to maintain your patient’s confidentiality, and ensure that your have the proper authority to release records or discuss your patient’s recovery.
DO COMMUNICATE WITH YOUR PATIENT’S LAWYER
· And whenever appropriate, and with the patient’s physician. Always make notes of any such conversations or requests.
DON’T BE YOUR PATIENT’S ADVOCATE:
· While being compassionate and supportive for your patients are valuable traits, you will be a much more credible witness if you maintain your objectivity throughout the court process. If you appear to be advocating for you r patient, as opposed to maintaining objectivity, your testimony will appear biased and will be weighed less heavily by the judge.
DO UNDERSTAND YOUR ROLE IN PATIENT THERAPY AND MAKE NOTES
· Do always take notes of your communications, treatments performed and results attained.
· Do always make those notes at the same time of treatments.
· Do write down ‘verbatim’ the comments of your patient.
· Do make sure that your descriptions are careful, detailed and complete, and avoid words that are overly broad.
DON’T CHANGE YOUR NOTES:
· Don’t go back later and “tidy up” or revise your notes. A court will become suspicious if they realize that you have gone back and edited your notes after the fact. Write down any further observations you recall separately so that they do not obscure the information already recorded.
DO MAKE YOUR NOTES SPECIFIC
· Do make specific notes of objective signs of injury every time you observe them. For example, where appropriate use words like “spasm” that record what you find, as opposed to words like “tenderness” that indicate what the patient tells you. Since the specifics of injury and observation are crucial to attaining a proper assessment for litigation, your objective and detailed notes will be helpful.
DO CONSIDER CONFIDENTIALITY
· Do keep in mind the confidentiality of your patient’s records and other information. You must always consider what you are saying and whom you are saying it to. Assume that the other party is taking notes of your conversation and speak accordingly.
DON’T COMMUNICATE WITHOUT CONSENT
DO REVIEW CMTBC ADVISORY STATEMENTS
· Do be sure you know what the CMTBC says in its advisory statements.
· Pay particular attention to Advisory Statement 6 — “Record-keeping,” and Advisory Statement ii —”ICBC Claims.”
DO GET HELP
· Do stand up for yourself. If your instincts are raising concerns, there is probably a good reason. Consult your advisors or other contacts at the MTABC or CMTBC, colleagues or seek legal advice if you think you might need it.
DO MAINTAIN YOUR SYMPATHY
· Do strike a balance between protecting yourself and supporting your patient. It is stressful for a patient to deal with their recovery and the litigation process at the same time. Your support is appreciated.
DON’T TRY TO HAVE ALL THE ANSWERS
· Don’t assume.
· Don’t speculate.
· Don’t guess.
· Don’t be pressured.
DO KNOW YOUR LIMITS
· Do be honest with yourself and others. If you don’t know or you are not sure, just say so.