Medical Records in Ottawa Personal Injury Cases
In all cases of person injury, there will be a significant amount of medical records involved. In personal injury litigation, parties have an obligation to exchange copies of all relevant documents, including medical records. The obligation is set out in the Rules of Civil Procedure which states that a “document” includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form; and (b) a document shall be deemed to be in a party’s power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.
Rule 30.02 (1) provides that every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed, whether or not privilege is claimed in respect of the document.
Document includes all relevant medical documents. Medical records provide evidence of medical diagnosis, prognosis, treatment, medical recommendations, test results and medical recovery.
Types of Medical Records
The types of medical records that are obtained include ER records, hospital records, physician files, massage therapist files, choripractor files, physiotherapist files, occupational therapy files, third party test results etc… In most cases, the defendant will ask for medical records dating back 5 years prior to the accident. In doing so, the defendant wants to determine whether your current injuries and symptoms are as a result of the accident in question or because of a pre-existing medical condition, a prior accident or prior injuries.
Your personal injury lawyer will arrange to obtain the following medical documents on your behalf:
1. Clinical notes and records of all your doctors, including test results.
2. Hospital files.
3. Expert files.
4. Treating health care provider files.
Categories of medical records
Medical records can be generally split up in three main categories, expert medical-legal reports, treating physician clinical notes and records and third party test results (blood tests, x-rays, etc…). Your lawyer may hire an expert medical practitioner such as an orthopedic surgeon or physiatrist (pain management specialist) to meet with you, assess you and write a medical-legal report. If you call an expert at trial, there are specific requirements contained in the Rules of Civil Procedure and the Evidence Act that must be adhered to. Your injury lawyer will make sure the documents are filed and served in the proper way and on time.
How are the medical records used at trial?
At trial, your injury lawyer will refer to and file your clinical notes and records as “business records” and so the records can be referred to as part of your case; as evidence in support of your case. Those clinical notes and records will help prove the treatment you received, the medications you took, your prognosis and provide opinions of your treating doctors.
Your injury lawyer will likely call your treating doctors to give evidence at trial and your doctors will refer to their notes and their file. Your doctors can explain their notes and records produced. It is helpful for your doctor to explain their notes to the court. In some cases, based on the treatment and personal observations, your treating doctors can provide the Court with opinions within the field of their treatment.
Prior to trial, your lawyer will review your medical records with you so that you are familiar with them and that your testimony at trial is consistent with the records. If the records are inaccurate, you will be able to deal with that during your testimony. If the records contradict what you say at trial, this could be problematic because it will call into question your credibility. Therefore, by reviewing the records in advance of trial, you can better prepare for any contradictions or inaccuracies in the notes and records. Better to deal with them while you testify than during cross-examination.
If the notes of your doctors show inconsistencies in what you said to your doctor and what was written and what you say in your testimony, this can be problematic. Therefore, by reviewing the medical records, you can explain the inconsistencies. There may very well be a valid explanation for the inconsistencies.
The other medical evidence that will be used at trial is the oral testimony of experts. Your injury lawyer will likely hire experts to meet with you, assess your medical condition and provide a written medical-legal report outlining their opinions, findings and conclusions. Your experts will give evidence at trial and will be allowed to refer to their medical-legal report. The defendant may also hire their own experts to meet with you and prepare their own expert reports. In that case, the defendant would call their own experts to give their own evidence. It is important to be honest and truthful in all meetings with your treating health care providers and when meeting with experts. In honesty there will generally be consistency.
Medical records play an extremely important role in personal injury actions. In most cases, medical records are provided to the defendant prior to litigation and this helps the defendant’s lawyer and insurer assess your case and determine if settlement is possible.
Our personal injury lawyers handle all aspects of obtaining, sharing and filing the relevant medical records, including hiring experts when needed.