By Perry Armitage, Partner
In BC physicians and healthcare professionals are obliged to keep accurate records of every patient visit. Typically, this “clinical history” contains the patient’s complaints along with the doctor’s examination findings, their observations, and their recommended treatment plan. Additionally, medical professionals can use the clinical history to identify and initiate future courses of treatment.
A person making a legal claim for benefits or losses arising from a disability or injury, known as a claimant, often uses the clinical history to establish the need for coverage or compensation. Advancing such a claim will almost always require disclosure of the clinical history. The disclosure allows the defendant, normally an insurer, to determine the claimant’s entitlement to the coverage or compensation sought.
In almost all cases defendants are entitled to review the clinical history from the date of the injury or loss. In appropriate circumstances legal counsel for the claimant will black out irrelevant portions of the clinical history prior to release. However, insurers will often insist on obtaining both the blacked out portions and the clinical history predating the injury or loss. The defendant’s claim to this information is negotiable or, in some cases, ordered by the court.
In a motor vehicle accident claim the factors that determine the disclosure of the clinical history are varied and often case specific. If the defendant insists on complete disclosure of your clinical history before providing you with the coverage or compensation claimed, you may ask yourself whether the defendant is entitled to the disclosure sought.
The key question is, “Are the clinical history records relevant?” In almost all cases a claimant’s clinical history will contain some information that is irrelevant to the claim advanced. If that irrelevant information is also highly sensitive personal information, then there are ways to protect that information from disclosure.
Determining relevance begins by considering how the clinical history record relates to the claim advanced. For example, if you are advancing a claim for a compression fracture of the cervical spine and one year prior to the accident the clinical history details a cervical surgical procedure then the clinical history record is clearly relevant. However, if the clinical history record details a surgical procedure to your hand then it is not relevant. Unfortunately, most cases are not this clear cut.
If it is likely that there is something in your pre-claim clinical history which is relevant to the claim advanced, then the question becomes where to draw the line? Are all your clinical history records relevant, or just those entries relevant to the claim advanced? In my experience, defendants prefer seeing your complete and unedited clinical history. Although this allows the defendant to determine your entitlement, it also may provide the defendant with ways to limit your claim.
When defendants push for information for which they are not entitled, what can you do about it?
The courts in BC frequently decide disclosure issues between claimants and defendants and the law is continually evolving. Most of these issues are fact specific and the law in this area is complex.
If you have a claim in the area of personal injury or insurance litigation and have questions about how much of your clinical history is relevant and producible, contact one of our Personal Injury lawyers today. We can help you make this determination without resorting to expensive or lengthy proceedings in court.
We offer free consultations. Call us today 604.581.7001