Privacy and Litigation: How your Medical Records can be used in a Legal Proceeding

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Written By: William Harding and Endrita Isaj, Student-at-Law

In a plaintiff’s personal injury legal matter, one of the first steps in commencing litigation is providing the authorization to your lawyer to access your medical records. The purpose of gaining access to these records is because they are a form of evidence that will be used in the legal proceeding to show the extent of the plaintiff’s injuries.

Medical records are accessed by the plaintiff’s lawyer when the plaintiff has given their written authorization, or in cases where the plaintiff does not capacity, through a substitute-decision maker. The authorization specifies which medical records and what parties the medical records can be released to.[1] Requests are made to various treatment providers such as family doctors, hospitals, pharmacies, physiotherapists, massage therapists, and chiropractors, amongst other providers. Photocopies of these records are made and often times will include clinical notes, investigation reports, results, and consultation reports.[2] In a personal injury claim, these records are produced date back to a few years before the accident. These records are important as they give the lawyer a chance to assess the case and its value.

Once these medical records are obtained, they allow the lawyer to build your case. It allows a lawyer to assess the plaintiff’s life before and after the accident to truly understand the impact of the injuries. This can help determine the damages that the plaintiff is entitled to. Once the case proceeds to examinations for discovery, these medical records are produced to defence counsel in the affidavit of documents as the clinical notes and records are relevant to the legal proceedings. These medical records are disclosed to opposing counsel to allow for a meaningful discovery process.

At trial, medical records are used as evidence and introduced by virtue of section 35 of the Evidence Act, RSO 1990, c. E.23. Under section 35, medical records are “business records” and are admissible as the doctor wrote these records within the “usual and ordinary course” of their business.[3] During the trial, the plaintiff’s doctor may also be called as a witness by the lawyer.

Trials are generally public proceedings, which means that some of the plaintiff’s personal information may be on the public record and accessed in a reported decision. In the case of Burgess (Litigation Guardian of) v. Wu, the court held that in a practical sense, a plaintiff has not waived any right of confidentiality on the issue of their health in a litigation legal proceeding. However, these factors are important considerations when considering privacy and your personal injury legal action.

If you or someone you know has suffered a serious injurycontact the lawyers at McLeish Orlando for a free consultation.

[1] October 2012, Releasing a patient’s personal health information: What are the obligations of the physician?, https://www.cmpa-acpm.ca/en/advice-publications/browse-articles/2012/releasing-a-patient-s-personal-health-information-what-are-the-obligations-of-the-physician.

[2] Ibid.

[3] Evidence Act, RSO 1990, c. E.23, s. 35(2).

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