Archives for July 2018

In medical malpractice we rely on the integrity of medical records as the foundation for understanding our client’s case. As more clinicians and hospitals move toward electronic medical records, lawyers must know what kind of information is available from those records and how to access it.

In the world of paper medical charts there is nothing wrong with a clinician making a late entry in a chart, as long as it is clearly marked as a late entry; but, it is an offence for a clinician to go back and alter medical records. Although it is possible in some cases to identify alterations to a medical record made after the fact, there is a chance that an alteration could go unnoticed. In the world of electronic medical records however, there is an audit trail that tracks all changes made to a medical record. There will also be an access log that identifies who has viewed a patient’s records, and which part of the record they looked at. Audit trails and access logs can provide a detailed timeline that for the most part cannot be altered and in some cases, that audit trail will be critical to understanding the nature of the wrongdoing.

The question is no longer “How can I figure out who saw these records or if somebody changed these records after the fact.” Now the question is “How do I get a copy of the access log or audit trail, and how do I figure out what it means?”

Patient Privacy and Security

Most of the legislation that applies to medical records is aimed at ensuring the privacy and security of patient health care information. Although there is less regulatory content aimed at ensuring that these records are not altered after the fact, the health regulatory colleges are beginning to address this issue. For example, the Bylaws of the College of Physicians and Surgeons mandates that a physician’s medical record system must, among other things, contain the patient’s demographic information, the patient’s presenting complaint, the results of the medical history and physical examination, what investigations were ordered, the provisional diagnosis or diagnosis, treatment recommendations, medications prescribed and the follow-up plan. This information must be capable of being reproduced promptly in a hardcopy and the system must audit or record any subsequent changes made.

An example of a long established electronic health record system is British Columbia PharmaNet that in 1995 was the first such system implemented in Canada. Since its inception, PharmaNet not only has been capable of logging every prescription dispensed in all community pharmacies British Columbia in a common database, it also has ensured the availability of access logs and the maintenance of audit trails. Consequently, any patient can request a print-out of their own PharmaNet profile, as can a third party authorized by the patient. That profile contains a record of all prescriptions dispensed for the person, back to the inception of PharmaNet. From a legal point of view, perhaps more importantly, the PharmaNet record also includes an ac-cess log – a record of the names of anyone who has accessed that patient’s PharmaNet profile other than at the time of dispensing a prescription and the date of access. For instance, every time you request a copy of your client’s PharmaNet profile, there will be an access log recorded of the date that the system administrator accessed your client’s PharmaNet profile to prepare the report you requested. There may also be other accesses recorded – if a patient attends at a physician’s office or an emergency room their profile may be accessed to assist in patient care.

But there is much more information available about each pre-scription than you see on the PharmaNet record. The computer system of the pharmacy where the prescription was dispensed will include every detail of the prescription, including the specific directions that were on the patient’s medication label, the initials of the pharmacist and the technician involved in dispensing the prescription, and the price charged to the patient. There also is an audit trail of every change that has been made to a prescription showing the original version of the label and if any changes have been made to that label. The system records what change was made, who made the change, and the date and time the change was made.

There is electronic medical record information everywhere technology is used in health care. Some departments in a hospital, for example, diagnostic imaging, may have electronic records that must be requested separately. Similarly, community health workers and outreach therapists may have their own versions of electronic records that are not integrated into a larger comprehensive health care record for a patient. Even medical equipment such as infusion pumps may record information about when an infusion was started, what the volume of the syringe was, and at what rate the infusion was running, although this information will not be found in the patient’s chart. Vital signs monitors used in hospitals and medical clinics often include a log of the results for a patient, although those results may be handwritten into a patient’s chart if a paper-based system is in use. Even the now common home blood glucose moni-tor or blood pressure cuff likely retains a log of the data.

How do you Access Data?

But, if you need this data to effectively represent your client, how do you access it? How can you recover audit trails of the electronic records? Firstly, to avoid missing crucial information, you need to make your request as specific as possible. For example, you may want to ask for all entries made, changed and deleted over a particular period of time in a particular system. You may also want to ask for screenshots of the electronic medical record if you need to know, for example, what information a particular physician had available to them when they were reviewing the lab results at a particular time?

You may want to know who accessed a certain report, when they accessed it and even where they were when they did it, as well as for how long they had access to it. Technical specifications can also be important. For instance, you might want to know what the systems settings are for automatically logging off a user if there has been no activity. Although each hospital will have procedural guidelines that instruct system users to ensure they log off before they leave a computer, no doubt there will be potential that a defendant might claim that a record has been altered in their name because they didn’t log off.

Distance medicine facilitated by electronic health information is becoming more common. For example, it is possible that there may be a CT scan ordered by a physician in one small hospital, conducted by a radiology technician in another hospital, then reviewed by a radiologist in a third hospital. If your client was injured as a result of a problem related to diagnostic imaging it may be important to gather information from audit trails and/or access logs about the CT requisition, the CT scan itself, the timing of the radiologist’s access to the imaging, the radiologist’s inter-pretation and recommendations, if any, and when and how the radiologist sent that information to the treating physician. This information can be critical to create a time-line of when events unfolded, the events themselves, and to determine if changes were make to the records after a bad outcome became known.

Screen shots can also be useful when many individuals are involved. For example, if the issue you are investigating relates to the possibility of an error in processing a tissue sample in a laboratory, it will be vital to understand which laboratory tech-nician was involved in each step of the process. If a department relies on an electronic system for tracking the sample, screen shots that show the date, time, initials of the laboratory staff member, identification of the patient, and the processing number of the sample, might be the best or only way to determine who was involved in each step. These screen shots would not be available through the medical records department, and would need to be requested through the specific department involved and possibly the information technology department.

Hospital Staff May Need to Assist

The medical records department of a hospital is not necessarily the department that can produce an audit trail or access logs. Generally medical records departments deal with requests for the records themselves, but it is likely to be the health information technology department that will produce audit trails and access logs. The hospital may need to enlist the assistance of the hospital’s information technology staff to access the audit trails and confirm how much detail is available through the system in use at the hospital.

If the information of interest comes from a specific piece of medical equipment, the vendor for the equipment may be able to help you understand what information should be available and how to access it. Still, it will likely be necessary for the hospital’s biomedical engineering department to obtain that data.

The information available through access logs and audit trails of a patient’s medical records can be critical in helping you fully understanding your client’s case. There is no single entry-point for accessing this information. Of course, once the action is started, if the hospital is one of the defendants it will be necessary to make requests for these records through counsel. Regardless of where you direct your request for records, make sure you understand what information could be available beyond the medical record that would routinely be produced, so you can create a detailed and complete timeline for your case that includes a thorough understanding of who accessed your client’s records, and what, if anything, they did to those records.

This piece was originally posted in The Verdict. You can also read the PDF from our Publications page. 

The law of adverse inference allows the court, in certain circumstances, to presume that a party has failed to call a certain witness because that witness would not have helped the party’s case. In medical malpractice, as well as other injury litigation, adverse inferences are often sought against a plaintiff for failing to call his or her treating physician as a witness. In this paper, we examine the circumstances in which an adverse inference will be drawn for a failure to call a treating physician to testify, and what factors the court will consider in making such a determination.

It is well settled that an adverse inference may be drawn against a party who fails to call a material witness at trial. The failure to call a material witness may amount to an implied admission that the evidence of the absent witness would not support, or would be contrary to, that party’s case. This principle is subject to many conditions, however, and the party against whom an adverse inference is sought may provide an adequate explanation for the failure to call the witness. As endorsed by the BC Court of Appeal in R. v. Rooke, 1988 CanLII 2946 (BCCA):

In any event, the party affected by the inference may of course explain it away by showing circumstances which otherwise account for his failure to produce the witness. There should be no limitation upon this right to explain, except that the trial judge is to be satisfied that the circumstances thus offered would, in ordinary logic and experience, furnish a plausible reason for non-production.

A witness may be equally available to both parties, or the party against whom an adverse inference is sought may have special access to the witness. In the latter case, there is a stronger basis for an adverse inference to be drawn.¹ Further, a trial lawyer may have many reasons for deciding against calling an available witness, such as if the point of evidence in question has been adequately covered by other witnesses, or because a witness may simply not present well in court. Therefore, it cannot be said that every failure to call an available witness should result in an adverse inference being drawn.

The notion of adverse inference is related to the “best evidence rule,” which states that parties should put forth the best evidence that the nature of the case will allow. As such, an adverse infer-ence should only be drawn in situations where the evidence of the witness not called would be superior to the other evidence at trial in respect to the facts to be proven.²

THE EVOLUTION OF THE LAW ON ADVERSE INFERENCE

Levesque v. Comeau, [1970] SCR 1010, is often cited for the proposition that a court must presume an adverse inference in cases where a party failed to call evidence from a prominent treating physician. In Levesque, the main issue before the court was whether the motor vehicle accident in which the plaintiff was involved was the cause of her serious hearing impairment. The plaintiff called only one expert to opine that trauma was a potential cause of her hearing loss, and that expert had examined her more than a year after the accident. She had consulted several other doctors and undergone examinations in the meantime, but none of these doctors was called to testify. As the plaintiff alone could bring this evidence before the court, Pigeon J. held that the court must presume that she did not do so because the evidence from these treating doctors would have adversely affected the plaintiff’s case.

The application of the adverse inference rule for the failure to call a treating physician has evolved in British Columbia over the years. In Barker v. McQuahe, (1964) 49 W.W.R. 685 (BCCA), Davey J. stated that a plaintiff seeking damages for personal injuries “ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or ex-plain why he does not do so.”³ Today, however, given the various medical practitioners that an injured plaintiff may see, the courts have recognized that requiring a plaintiff to call every medical professional consulted as a witness would raise litigation costs by requiring more reports from physicians or additional attendances of physicians in court, with nothing added to the knowledge of counsel, but with time and expense added to the trial process.⁴ The rationale for drawing an adverse inference for failing to call a treating or primary care physician is that the physician would be the individual best able to give evidence as to the plaintiff’s condition throughout the relevant periods of time. When a treating physician is not called to testify on behalf of the plaintiff, courts have the discretion to draw an adverse inference, but are not required to do so.⁵

Although most case law deals with an adverse inference being drawn against a plaintiff for failing to call a treating physician as a witness, the inference may be drawn against the defendant in certain circumstances. In Norris v. Burgess, 2015 BCSC 2200, the plaintiff attended a defense medical examination by a psychiatrist, but the defendant chose not to obtain an opinion from the psychiatrist and did not call him as a witness. Speaking for the court, Funt J. held that the plaintiff could lead evidence as to her attendance and surrounding circumstances of the independent medical examination. In coming to this conclusion, Funt J. noted that civil litigation is an adversarial process, and where one party requests “that the other party attend an interview or examination with a third person (whether or not that person is an expert) and the other party so attends, the requesting party should not be surprised that the interview or examination may be relevant with evidentiary consequences.”⁶

In Buksh v. Miles, 2008 BCCA 318, the BC Court of Appeal set out a number of factors the court should consider in determining whether an adverse inference should be drawn against a party if a treating physician is not called to testify:

1. The evidence before the court;
2. The explanation for not calling the witness;
3. The extent of disclosure of the doctor’s clinical records; and
4. The circumstances of the trial, such as where there has been an agreement to introduce clinical records that may be contrary to the inference, or where the witness’s views are apparent in the report of another witness.⁷

In the following sections, we look at how these factors have been applied in case law when deciding whether the adverse inference will be drawn.

APPLICATION OF THE LAW ON ADVERSE INFERENCE

1. The Evidence Before the Court

This first factor considers what evidence was before the court through other means, and what the witness who was not called would have been expected to provide evidence on. If the evidence of the treating physician was available through other witnesses that were called, this would have a significant impact on the court’s analysis. However, as stated in Lurtz v. Duchesne, [2003] O.J. No. 1541, if “the evidence provided was available through other means, but it is not the best evidence available, the court may still draw an adverse inference.”⁸

The court will also consider the nature and extent of the evi-dence that the treating physician could be expected to bring. A party is free to dispense with relatively unimportant or repetitive evidence, but an adverse inference may be drawn if the witness’s evidence is critical to the plaintiff’s case. In Keech v. Chang, [2009] O.J. No. 1614, the plaintiff alleged the defendant physi-cian pierced her spinal cord while administering anesthetic in preparation for hip replacement surgery. It was her position that the negligence caused serious neurological deficits, as well as significant depression, anxiety, and sleep deprivation. The court drew an adverse inference against the plaintiff for failing to call two of her physicians who had been treating her for approximately 25 years, as these physicians would have “been in the position to comment on how this surgery has affected her mental health and general outlook on life.” ⁹

Buksh v. Miles involved a scenario in which the plaintiffs failed to call evidence from two physicians at walk-in clinics who saw the plaintiffs within days of the accident. They did, however, call their family doctor, who treated them prior to the accident, and continued to treat them afterwards. Since the absent witnesses were not longstanding family doctors, and all their clinical records had been admitted into evidence, the court declined to draw an adverse inference for the failure to call the walk-in clinic doctors.

Whether the treating physician in question is a specialist or a general practitioner may also impact whether an adverse inference will be drawn. In Barker v. McQuahe, the plaintiff did not call his treating specialist, and the court drew the inference that the specialist did not support the opinion of the plaintiff’s general practitioner, who had been called to testify. Since the specialist would have presumably been better qualified to opine on the plaintiff’s injury than the general practitioner, the court concluded that his evidence would not have helped the plaintiff’s position. Prato v. Insurance Corporation of British Columbia, 2003 BCSC 76, involved the opposite scenario: the plaintiff’s specialists were called to testify, but a general practitioner was not. The court found that there was less of a concern about the lack of support-ing evidence from a general practitioner than if the situation was reversed, and declined to draw an adverse inference.

1. Explanation for Not Calling the Witness

Mohamud v. Yu, 2016 BCSC 1138, involved a claim for dam-ages resulting from two motor vehicle accidents. Of concern to the court was an absence of any objective evidence from any treating physician confirming the plaintiff’s injuries. Most notable from the court’s perspective was the failure of the plaintiff’s trusted family doctor to testify or provide an expert report. The plaintiff’s explanation was that she had called witnesses she had considered the most necessary, she did not have the means to obtain every medical report possible, and that a family doctor is not necessarily the best to provide an opinion. She further argued that it was open to the defendant to call her family doctor.

The court did not agree that the plaintiff’s family physician was not the best witness to provide evidence as to her injuries, as he was “the only person who could have given the court an opin-ion about the plaintiff’s condition, informed by a longstanding relationship and observations throughout the relevant periods of time.”¹⁰ The court also did not accept the fact that the defendant could have called the doctor as a witness to be adequate in explaining the plaintiff’s failure to do so.

Similarly, in Keech v. Chang, counsel for the plaintiff suggested that the court did not need medical testimony from the plain-tiff’s longstanding treating doctors as to the effect of the alleged negligence on her mental health, as the plaintiff herself was the best able to testify as to the effects of the injury on her life. The court disagreed: “This ignores the fact that even if Ms. Keech honestly believes most of her current problems are attributable to the lesion, she may well be mistaken, and lacks the objectiv-ity and medical perspective needed to tease apart her pre- and post-surgical complaints.”¹¹

In Chappell v. Loyie, 2016 BCSC 1722, the plaintiff did not call his family doctor as a witness even though this doctor had treated the plaintiff around the time of the accident and for many years prior. As causation was the primary issue in the case, the defendant urged the court to draw an adverse inference, submitting that the family physician was the witness best able to provide evidence as to the plaintiff’s pre-existing injuries, and opine on what injuries were caused by the accident. Counsel for the plaintiff pointed out that it was open to the defendant to call the doctor as a wit-ness, but that there had not attempted to do so. Counsel for the defendant countered that it was not usually feasible to obtain an opinion from a plaintiff’s treating family doctor as he or she is usually unwilling to undermine the trust of a doctor-patient relationship. The court agreed that while this may be a real and practical consideration, because the plaintiff had stopped seeing the doctor regularly after July 2012, it was open to the defendant to at least approach the doctor and consider calling him as a wit-ness. Considering the entire circumstances, the court declined to draw an adverse inference against the plaintiff.

As previously mentioned, counsel may have tactical reasons for not calling a witness, such as the witness’s demeanor or presentation in court. The BC Supreme Court has stated that when deciding whether to draw an adverse inference, the court can consider the unsworn statements of counsel regarding the reasons for not calling the witness.¹²

1. Extent of Disclosure of the Clinical Records

The extent of the clinical records disclosed will impact whether the adverse inference is drawn. The defendants in Djukic v. Hahn, 2006 BCSC 154, urged the court to draw an adverse inference against the plaintiffs for failing to call three treating physicians. Speaking for the court, Josephson J. provided five reasons for declining to do so:

1. Both parties have produced volumes of medical evidence from a number of doctors;
2. Complete clinical records of these doctors were disclosed to the defence;
3. These same records were expressly considered and subsumed in the opinions of doctors whose reports are before me;
4. Having disclosure of these records, it was open for the defense to interview and call these doctors as witnesses without risk of being blindsided;
5. These were not doctors whom Mrs. Djukic con-sulted on a regular basis.¹³

In Hodgins v. Street, the plaintiff failed to call her family physician as a witness or to provide a report, and the defendant asked the court to draw an adverse inference. Although the family doctor’s clinical records were produced, they were “simply records kept in the ordinary course of business” and did not contain any opinion evidence. As a result, the court ultimately decided to infer that the plaintiff did not call her family doctor as he would not have provided favorable evidence.

CIRCUMSTANCES OF TRIAL

Lastly, when deciding whether to draw an adverse inference, the court may consider the circumstances of the trial, such as where there has been an agreement to introduce clinical records that may be contrary to the inference, or where the witness’s views are apparent in the report of another witness.

In Beggs v. Stone, 2014 BCSC 2120, the court declined to draw an adverse inference against the plaintiff for failing to call her family physician and the psychologists who treated her before and after the accident. In coming to the decision, the court emphasized the fact that the clinical records of these physicians were reviewed by defense counsel and the experts who provided opinions based, in part, on those records. The plaintiff’s pre and post accident condition and progress were well documented, and there was nothing to suggest that anything that was in the records contradicted any of the evidence from the doctors that were called as witnesses. The views of the plaintiff’s treating doc-tors formed part of the reports of the experts and, as a result, an adverse inference was not drawn.

Other circumstances will also be considered by the court. The defendants in Prato v. Insurance Corporation of British Columbia sought an adverse inference against the plaintiff for not calling two family doctors to testify. One of these doctors was not avail-able to testify at trial and counsel for the defendant required him to attend for cross-examination. The doctor’s records, therefore, which contained opinion evidence, were not admitted. In these circumstances, the court declined to infer that the doctor held views which would negatively impact the plaintiff’s case.

CONCLUSION

An adverse inference may be drawn against a party for failing to call a material witness if it is apparent from enough other evi-dence that the witness would have been able to assist the court by providing evidence on a material issue. In medical malpractice and other injury claims, it is not necessary to call every physician that the plaintiff has seen. However, if a plaintiff’s physician is able to provide superior evidence regarding the plaintiff’s position, counsel would be prudent to provide this evidence to the court – or be prepared to have a good explanation for not doing so.

1. R. v. Jolivet, 2000 SCC 29, at para. 27.
2. Buksh v. Miles, 2008 BCCA 318, at para. 30 [Buksh].
3. Barker v. McQuahe, (1964) 49 W.W.R. 685 (BCCA) at 689, as cited in Hodgins v. Street, 2009 BCSC 673 at para. 57.
4. Buksh, supra note 2, at para. 34.
5. McTavish v. Boersma, 1997 CanLII 4372 (BCSC) at para. 14.
6. Norris v. Burgess, 2015 BCSC 2200 at para. 16.
7. Buksh, supra note 2, at para. 35.
8. Lurtz v. Duchesne, [2003] O.J. No. 1541 at para. 26.
9. Keech v. Chang, [2009] O.J. No. 1614, at para. 209 [Keech].
10. Mohamud v. Yu, 2016 BCSC 1138, at para. 40.
11. Keech, supra note 9, at para. 211.
12. Tower Waterproofing v. Mondiale Development Ltd., 2013 BCSC 1772 at para 24, citing Fresneda v. Ocean Pacific Hotels Ltd., 2008 BCSC 238.
13. Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203, at para. 60.

This piece was originally posted in The Verdict. You can also read the PDF from our Publications page. 

The leading case in British Columbia regarding communication between counsel for the defendants and a plaintiff’s treating physicians is Swirski v Hachey. Swirski was a motor vehicle case in which the plaintiff alleged ongoing disabling injuries including a brain injury causing epileptic seizures. Defence counsel sought to informally interview the plaintiff’s four neurologists, at least some of whom attributed her seizures to psychiatric causes rather than brain injury. Defence counsel also sought to informally interview the plaintiff’s general practitioner, who was also an expert witness for the plaintiff.

It is well established that the commencement of an action by a plaintiff for injury waives doctor-patient confidentiality with respect to that injury and medical information bearing on and relevant to that injury. The issue before the court in Swirski was the extent of that waiver. The court was clear that the waiver of confidentiality implemented by the commencement of the action does not extend so far as to put the plaintiff’s entire medical and psychological history at issue by making a claim for any particular medical matter or condition. The court’s concern was how to protect medical information in the possession of a treating physician that was not relevant to the matters in issue in the action. For medical records, this concern is addressed through the Halliday procedure in which the records are reviewed by plaintiff’s counsel prior to disclosure to the defendants. This provides plaintiff’s counsel with a chance to make an application to the court to remove those portions of the record that are not relevant. Such a procedure is not possible when the information sought comes in the form of an interview rather than written documents.

Ultimately, the court concluded:

1. Communication between a plaintiff’s treating physicians and counsel for other parties in the litigation is acceptable. The commencement of the action amounts to a waiver of confidentiality.
2. Doctors are not obligated to participate in conversations with counsel. Doctors are free to refuse to take part in such discussions entirely or agree to do so only in the presence of both counsel or with their own lawyer present.
3. The scope of the waiver of confidentiality is only as wide as the medical matters at issue in the lawsuit and other medical matters relevant to or having a bearing on such matters. The limits of what is relevant will likely have been decided at the Halliday stage and thus interviews with treating physicians should occur after the conclusion of that process.
4. Notification must be given to plaintiff’s counsel of an inten-tion to seek informal discussions with named physicians.
5. The onus is on plaintiff’s counsel to apply for restrictions upon the defendant’s right to interview.

OTHER JURISDICTIONS

The rules regarding informal pretrial interviews with treating physicians differ in different jurisdictions. In Alberta, the case of Hay v University of Alberta Hospital set out rules that mirror those in British Columbia. Commencement of an action for damages was held to waive physician-patient confidentiality and counsel for the defendant was free to have informal discussions with medical practitioners who had treated the plaintiff. As in British Columbia, the physicians are not required to participate in these discussions but are allowed to do so should they choose.

In Ontario, the rules are fundamentally different, as set out in Burgess v Wu. A plaintiff’s health care professionals have a duty to refuse to disclose information about their patient unless required to do so by law. Unless the patient consents, representatives of a party in litigation may not have any communication at all with the patient’s physician concerning the patient. The strict prohibition was designed to protect confidentiality. The court held that a rule with exceptions would be impossible to police and would give rise to a number of unacceptable risks. The court referred to an American case that accurately summarized the prevailing law in Ontario and stated:

a decision to allow ex parte conferences neglects to take into account the modern public policy that favors the confidentiality of the physician-patient relation-ship and thereby prohibits, because of the threat posed to that relationship, ex parte conferences between defense counsel and a plaintiff’s treating physician.

Finally, the court ruled that even where access is permitted, the person under a duty of confidentiality cannot be asked for opinions beyond those formed during treatment of the patient unless this is specifically consented to or ordered.

CONSIDERATIONS FOR PHYSICIANS

Confidentiality has long been considered a crucial component of the physician-patient relationship. As stated by Congressman Richardson Preyer of North Carolina, and quoted in the Report of the Commission of Inquiry into the Confidentiality of Health Information by Commissioner Krever: “Confidentiality has been an essential element of the medical care relationship ever since the dawn of medicine.”

The Canadian Medical Association Code of Ethics sets out a number of ethical obligations that arise when physicians are asked to speak to a third party about their patient or their patient’s health:

• Recognize and disclose conflicts of interest that arise in the course of your professional duties and activities, and resolve them in the best interest of patients.

• Protect the personal health information of your patients.

• Avoid public discussions or comments about patients that could reasonably be seen as revealing confidential or iden-tifying information.

• Disclose your patients’ personal health information to third parties only with their consent, or as provided for by law, such as when the maintenance of confidentiality would result in a significant risk of substantial harm to others or, in the case of incompetent patients, to the patients them-selves. In such cases take all reasonable steps to inform the patients that the usual requirements for confidentiality will be breached.

The Supreme Court of Canada, in McInerney v MacDonald, has recognized the fiduciary nature of the physician-patient relationship. The fiduciary duty includes the duties to act with utmost good faith and loyalty. The relationship includes a duty of confidentiality on the part of the physician.

One of the concerns of the Ontario courts with respect to physician-patient confidentiality is the risk that the duty of confidentiality may be inadvertently breached by conversations that escape the bounds of relevancy. In St. Louis v Feleki, Craig J. addressed this issue:

If it is held that the right to confidentiality is waived, or if it is held that there is an implied consent, doctors may inadvertently disclose matters which are not relevant to the issues in the case, or doctors may disclose matters which they think are relevant but which prove later to be irrelevant, or not admissible as evidence at trial.

In British Columbia, if the medical records have been redacted for issues of relevancy, defence counsel need only provide copies of the amended records to the treating physician before interviewing him or her and draw the doctors’ attention to information still regarded as confidential. Most physicians have not been to law school. They know the ethical and legal obligations that govern their practices but they do not have the detailed legal knowledge necessary to understand the limits of a waiver of confidentiality. When advised by defence counsel that the plaintiff has waived the right to physician-patient confidentiality by commencing a lawsuit, doctors are at risk of disclosing medical information outside the matters at issue in the litigation and breaching their duty of confidentiality. This risk is exacerbated when the medical records generated by the physician have already been redacted for relevancy. The physician is then placed in a situation where his or her extensive knowledge of the patient must be separated into confidential and non-confidential categories in the midst of an ongoing interview and only the non-confidential information may be revealed. In practice, the medical treatment may be dictated by both sources of information. The physician must walk a very fine line in determining what to discuss with counsel for the defendant.

CONSIDERATIONS FOR LAWYERS

Be aware of what jurisdiction the treating physician is practicing in. Physicians must abide by the laws in their jurisdictions. Lawyers must take care not to induce them to breach their professional obligations by misinforming them of the law due to jurisdictional differences.

In British Columbia, physicians are permitted but not required to participate in conversations with counsel for parties adverse in interest to their patients. It is perfectly appropriate to inform the plaintiff’s treating physicians of this distinction. Plaintiff’s counsel may find it to be in the client’s interests to write to all treating physicians at the beginning of the litigation and inform them that they may be contacted by defence counsel. Such a letter can set out the waiver of confidentiality involved in the lawsuit and also the limits of that waiver. If the client does not consent to a waiver of confidentiality for medical information that is not relevant to the action, be clear about that. Plaintiff’s counsel can request that treating physicians make it a condition of participating in an interview with defense counsel that plaintiff’s counsel also be present for the purpose of objecting to questions on the basis of irrelevancy.

However, in explaining the law to the physician, counsel must take care not to breach his or her own professional obligations. Rule 5.3 of the Code of Professional Conduct states:

a lawyer may seek information from any potential witness, whether under subpoena or not, but the lawyer must disclose the lawyer’s interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way.

There is no property in a witness. Counsel cannot prevent a witness from talking to other parties and must ensure that they do not order a physician to decline an interview with defence counsel. Explaining the issues and the physician’s rights and obligations is perfectly appropriate. Actively preventing a physician from participating in discussions is not. The patient’s wishes can be conveyed to the physician but, ultimately, whether the physician speaks with defence counsel or requests the presence of all counsel at an interview is a decision for the physician to make.

The courts in BC have rejected the suggestion, proposed by plaintiff’s counsel in Swirski, that communication with treating practitioners must occur in the presence of plaintiff’s counsel to ensure only relevant medical information is disclosed. However, as a matter of best practices, I suggest that defence counsel should consent to the presence of plaintiff’s counsel at an in-formal interview of the treating physician. This approach has a couple of advantages. First, it ensures that the physician is not put in the unfair position of trying to determine (likely without detailed knowledge of the legal rules) whether the discussion they are participating in crosses the line regarding the limits of relevant medical information and breaches the physician’s duty of confidentiality. Second, if a physician is uncomfortable with the discussion or gets any hint that there is a dispute between the parties about the appropriateness of an informal interview, they are likely to seek their own legal advice. The Canadian Medical Protective Association will appoint counsel for the physician in this scenario, delaying and complicating the process.

This piece was originally posted in The Verdict. You can also read the PDF from our Publications page.