WHY YOU SHOULDN T DISCLOSE ALL MEDICAL RECORDS IN PERSONAL INJURY LITIGATION

WHY YOU SHOULDN’T DISCLOSE ALL MEDICAL

RECORDS IN PERSONAL INJURY LITIGATION

By Justin Valentine

6

th

_{April 2014}

This publication is intended to provide general guidance only. It is not intended to constitute a definitive or complete statement of the law on any subject and may not include more recent changes since the date of publication. It is no substitute for legal or professional advice in any case. Any views or opinions expressed in this article are those of the author only.

Justin Valentine

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WHY YOU SHOULDN’T DISCLOSE ALL MEDICAL RECORDS IN PERSONAL INJURY LITIGATION

It is not a precondition for bringing a modest claim for personal injury that a claimant’s entire medical history no matter how irrelevant and personal should be disclosed. Defendants often request disclosure of a claimant’s entire medical history to challenge credibility. That is an understandable aim in the context of many public liability and road traffic accident claims. However, that purpose can be achieved without disclosure of all medical records.

The bundle for a trial I recently undertook contained numerous documents concerning urogynaecological investigations. The medical records were extensive and made up the majority of the trial bundle. With the cooperation of defendant’s counsel those records were removed from the bundle before trial. However, the defendant objected to wholescale removal of the majority of the medical records noting that they had been disclosed. Within those documents there was passing reference to binge-drinking at the weekend.

The case concerned an accident at a gym where the claimant in attempting to adjust the seat pulled a lever which caused the seat to come off the exercise machine so that she fell to the floor. The accident happened on a Saturday at approximately 2pm. There was no doubt that the accident had occurred as the defendants’ staff saw it happen. That in itself should have led to a more limited approach to disclosure.

The first line of questioning probed the claimant as to whether she was still drunk from the night before at the time of the accident and that may have been what caused her to fall. I would suggest that my opponent didn’t think for a minute that she was still drunk. The point rather was to suggest to the judge that the claimant was generally feckless and the claim without moral merit. In the event the claim succeeded subject to a 50% reduction for contributory negligence which high

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percentage possibly reflected an implicit judgment of the claimant’s character.

Judges should not allow such irrelevant, prejudicial lines of questioning and on occasion do step in but to object can create an impression of attempting to conceal. In any event, once the judge has been alerted to records going to character the damage has to some extent been done.

Medical records are not indivisible and wholescale disclosure in run-of-the-mill personal injury litigation is seldom appropriate. Claimants have a right to privacy pursuant to Article 8 of the European Convention on Human Rights which provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Pursuant to section 6 of the Human Rights Act 1998, it is unlawful for courts to act in a way which is incompatible with a Convention right. Accordingly, courts should not interfere with the right of privacy except where such interference is necessary. CPR 31.19(3) provides a procedural basis for withholding inspection as distinct from disclosure:

(3) A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document must state in writing—

(a) that he has such a right or duty; and

(b) the grounds on which he claims that right or duty.

CPR 31.19(4) states that the statement referred to in CPR 31.19(3) should be contained within the disclosure statement. It is suggested that all disclosure statements should contain such statements

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objecting to inspection of all but relevant records. Medical records contain much sensitive and personal information wholly irrelevant to the issues. Claimants should be assisted by their solicitors in upholding their Convention rights. Many clients are passive in their insistence on such rights but such passivity should not be used by lawyers, whether acting for claimant or defendant, or by the court in facilitating unnecessary intrusion.

In general, disclosure going only to credit should not be ordered: Ballantine & Son Ltd and Others v

Dixon & Son Ltd and Others [1974] 1 WLR 1125. The question in civil courts is whether the

documents sought have a probative value.

The complaint often met at directions’ hearings is the rhetorical assertion as to who is to decide relevancy. The CPR indicate that it is for a party to decide assisted by their solicitors. This is no different from disclosure of relevant records from a defendant whether they be records of machine maintenance, previous repairs of a defect in a road, emails warning of unsafe systems, of subsequent remedial action taken or a whole range of other relevant material which lies solely in the hands of the defendant.

There are cases where a claimant’s entire medical history is disclosable. For example, if a claimant claims future loss of earnings then he puts his entire pre-accident medical history in issue; Dunn v

British Coal Corp; [1993] ICR 591. However, in fast track cases where there is no claim for future loss

of earnings there is no principled reason for disclosure of a claimant’s entire medical records.

Where credibility is in issue then relevance should be interpreted widely to include, for example, all records relating to previous accidents resulting in claims made and all records relating to injury to the same part of the body. In allegations of low velocity impact (“LVI”), in addition to such records, records for a defined period, say three years before and up-to-date should also be disclosed since

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the absence of a contemporaneous medical record subsequent to alleged injury in the context of a frequent GP visitor would be relevant.

That only relevant records should be disclosed in LVI cases was endorsed by the Court of Appeal in

Kearsley v Klarfeld [2005] EWCA Civ 1510 which dealt with allegations of low velocity impact:

We would also endorse the suggestion made by Mr Mark Turner QC that in cases of this kind when intimating a claim the claimant’s advisers should offer access to their client’s vehicle to the defendant’s insurers for the purpose of early examination (if they so wish), and give early disclosure (with irrelevant passages redacted, if necessary) of any contemporaneous GP’s or other relevant medical notes.

Similarly, the pre-action protocol for personal injury makes reference at paragraph 3.16 to the claimant’s solicitor organising access to “relevant” medical records. This implies both that only relevant records should be disclosed and that the claimant’s solicitors can be trusted to decide what is relevant. The pre-action protocols for low value personal injury claims provide that the medical expert should identify records relevant to the claim which should then be disclosed.

There are cases where an expert has referred to the entirety of the medical records in the medical report. Although this may trigger disclosure, see Bennett v Compass Group UK and Ireland Ltd &

British Ceramic Research [2002] EWCA Civ 64, this does not affect the claimant’s right to refuse

inspection pursuant to CPR 31.19(3).

It is sometimes argued that Bennett provides authority both for disclosure of a claimant’s entire medical records and the giving of an authority. That is incorrect. In respect of authorities LJ Clarke held:

40. .... What is said is that, assuming there was jurisdiction to make an order of this kind [ordering a form of authority to be provided], such an order should only be made in exceptional circumstances because in principle a patient should retain control over his or her own medical records. I entirely agree that a judge should think long and hard before making

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such an order because a defendant should only be allowed to see a claimant's medical records in carefully defined circumstances.

41. Moreover, where an order is made that the claimant authorise a third party to permit an opposing party to inspect medical records, the order must be very clearly and carefully drafted and must ensure that none of the claimant's rights, whether under the European Convention on Human Rights or otherwise, are or could be infringed. The precise nature of the authority must be very carefully delineated so that there is no doubt what it is that the defendants are to be permitted to see. Thus it must be quite clear to the person, or body, to whom the authority is given precisely what it is the claimant is authorising them to disclose and what he or she is not authorising them to disclose. For these reasons I would expect an order in these similar terms to be rare.

However, it is also noteworthy that in that case no point had been taken by the claimant in relation to privacy as noted at paragraph 35 of the judgment:

There was no suggestion that there were any potentially relevant records which the claimant was not willing to disclose on the grounds of confidentiality or otherwise. This is not, therefore, a case in which it was being said that some of the requested records were discloseable, but some were not. I recognise that such cases may give rise to particular problems.

The intention of restricting disclosure to relevant documents is not to attempt to gain an unfair advantage but to disabuse claimants’ and defendants’ representatives, and the courts, of the unacceptable belief that to bring a modest personal injury claim, a claimant must disclose their entire medical history which expectation is intrusive, unjustified and disproportionate. It should also assist in preventing offensive and unnecessary lines of cross examination which have no relevance to the issues in the case.

JUSTIN VALENTINE Atlantic Chambers 6th _{April 2014}