In estate litigation, medical records are key sources of evidence with respect to the capacity of the deceased. In most cases, the parties seek and obtain an order for their disclosure at an early stage. The order serves to waive any doctor-patient privilege that would otherwise attach to the records.
Litigants and their lawyers must, in most cases, be careful to ensure that such an order is in place prior to seeking such medical records. Doctors, too, must ensure that such an order has been obtained and that they are therefore authorized to release the medical records.
A recent decision, Smith v. Muir, illustrates the possible perils of improperly seeking medical records. That case involved a motor vehicle accident. Trial was approaching and defence counsel wrote to two of the Plaintiff’s doctors. Defence counsel served them with a summons to attend at trial, and also the following request: “We will require an entire copy of your file for preparation of this matter for trial. Would you please forward to us a complete copy of the entire contents of your file, including … . Should you be unable to provide us with this documentation, please ensure that you bring your original complete records with you upon your scheduled attendance at trial.”
The Plaintiff learned of this, and then moved to have defence counsel removed as lawyer of record. While the court did not remove counsel, it was highly critical of the defence lawyer’s conduct. The court stated that the request for medical records directly from the Plaintiff’s doctors, rather than through the Plaintiff’s lawyer or through the court, was inappropriate. The court noted that the letters did not indicate that defence counsel did not have the Plaintiff’s consent to disclosure, or that the doctor may wish to seek advice before disclosing. The letter, said the court, “invites the unwitting health practitioner to breach his or her duty of confidentiality and the privacy of the patient”.
The court referred extensively to the decision of Burgess v. Wu, which sets out the appropriate protocol to follow for obtaining medical records. The appropriate routes are either through the discovery provisions of the Rules, or through a disclosure order from the court. Otherwise, “A plaintiff’s health care professional has a duty to refuse to disclose information about his or her patient unless required to do so by law”.
Although the Plaintiff’s motion was unsuccessful, the court awarded the Plaintiff her costs.
In estates litigation, matters are complicated due to the fact that the patient is no longer able to consent to disclosure, and there often isn’t an estate trustee who can consent. In those cases, an order is almost always required.
Have a great weekend.