Trial Testimony of the Physician

The decision to allow the testifying physician, as in the case of any witness, and to admit into evidence their clinical notes as an exhibit is one in the discretion of the trial judge. Generally it is expected that the physician would need to refer to their notes to give testimony. It does not follow that this would allow the notes to be admitted into evidence.

Absent direct testimony at trial, should counsel wish the notes to be admitted for the truth of their contents, notice under the relevant Evidence Act will be required. ¹

Opinions offered by the physician as to the ability of the patient to work must arise from the doctor’s treatment of the patient to avoid the need to provide an expert report.  In one case the physician offered the view that his patient plaintiff was “permanently disabled from gainful employment for which he is qualified by training and/or experience” which clearly repeated the test for long term disability “any occupation” coverage. The Ontario Court of Appeal agreed that this opinion was admissible as “this was not a complex vocational assessment” but rather a “straightforward opinion formed as part of his ongoing treatment”.²

It is clear that once a physician testifies at trial, be that at the instance of either party, the doctor cannot decline to answer on the basis of a duty of confidentiality. ³

Ferguson J. distinguished the concepts of privilege and the duty of confidentiality. Privilege, he described as an evidentiary rule, which makes such communications inadmissible in court at trial. A physician hence called as a trial witness by either party, with or without the consent of the patient, cannot refuse to answer on the grounds of protecting a duty of confidence. The objection as to answering a question must be rooted in privilege, as noted in the passage above.

Issues prior to trial, he stated, were not to be determined by the evidentiary rule of privilege, but rather by the duty of confidentiality. Confidentiality issues and privilege issues may be raised as production objections. An objection on the grounds of privilege may be raised as a defence on a production motion. ⁴

The Divisional Court ⁵came to the same view, concluding that there can be no objection of confidentiality at trial.

This same issue was addressed by the Court of Appeal of New Brunswick in which the appellate court agreed with the distinction between these two principles referenced by the Divisional Court in Wells above:

…However, Gravely J. also points out that “despite the fact that the physician has a duty of confidentiality to a patient, the duty does not translate into privilege” and a doctor “must disclose at trial confidential medical information if it is relevant and necessary for the attainment of justice in the particular case”, unless the exclusion of such information would be in the public interest..

Lord Denning also concluded in a 1977 decision⁶ of that confidentiality on its own does not amount to privilege.

 After reviewing many of the above cases and in particular, the Supreme Court decision of M. (A.) v Ryan above, Ferguson J. summarized the common law as follows:⁷

1. Medical information at trial will be excluded only if the court specifically finds that there is an evidentiary privilege;
2. The duty of confidentiality always will arise and will be accepted only as is required to allow for a fair hearing process.
3. The general rule as originated in Wells is that the defence can obtain access to medical information under judicial supervision, failing consent;
4. There are two routes of “judicial supervision”, such being, either by a rule allowing for discovery of documents as in Rule 31.10 or by a special disclosure application from a judge using the inherent jurisdiction of the court.
5. Health care professionals have a duty to refuse to disclose medical information of a patient, unless required to do so by law.
6. Unless the patient consents, the opposing party in litigation may not communicate with the physician of the opponent.
7. Even where access is permitted, the physician cannot be asked for opinions beyond those formed during treatment of the patient, unless specifically agreed or ordered. These were referred to as “treatment opinions” as distinguished from expert opinions or “litigation opinions”.
8. Where a physician testifies in court, they are then required to answer all relevant questions and they may then be asked for litigation opinions by the defence.