Impact of Litigation – an absolute or qualified waiver?
Limited Waiver
A 1985 Ontario Court of Appeal 1 concluded that once the plaintiff raised the issue of one's medical condition, they could no longer assert a claim for privacy or confidentiality. The entirety of the OHIP records were ordered to be produced. 2 However, Cory J.A. 3 noted that there must be in place judicial supervision and control over the disclosure process, where the parties cannot agree on an appropriate process.
Later decisions have refused to follow this principle that the commencement of litigation led to an implied waiver of confidentiality as an absolute.
The significance of the issue of litigation as an implied waiver of confidentiality has been overstated. All common law jurisdictions have concluded, with differing language, that there is an obligation to produce relevant medical records once the plaintiff has put their medical state in issue. The question becomes what controls should be in place to balance the competing interests by governing the production of medical information.
In Alberta and British Columbia, requests made by defence counsel to interview the plaintiff’s physicians, as discussed below, reflect the judicial review of the competing forces in an attempt to arrive at a suitable balance.
The Supreme Court of Canada 4 on the basic question of whether the commencement of litigation was a deemed waiver of confidentiality, chose not to respond on this issue.
Ferguson J. 5 saw that the Supreme Court in the above decision chose not to answer the question of whether the commencement of litigation is a deemed waiver of confidentiality, yet the effect of this decision was that the answer to this question is “no”.
The Alberta Queen’s Bench 6 reviewed the historical development of the common law on this subject and concluded rightly that the rights waived by the commencement of litigation are limited to the extent necessary for disclosure of relevant information to determine the merits of the action.
Interviewing Plaintiff's Doctors
In the Court of Queen’s Bench of Alberta 7, the defendant moved for an order allowing it to interview the plaintiff’s three treating physicians. The action was one of medical malpractice in which the plaintiff’s medical condition was clearly in issue.
As to the first question on whether the plaintiff had waived his right to confidentiality by putting his health in issue, the court referenced parallel reasoning on the waiver of privilege, once the health issue was litigious.
The Alberta Court came to the same conclusion as did the Ontario Court of Appeal, namely, that once the plaintiff elected to put his health in issue, there was a waiver of confidentiality. As to the specific issue, such being the right of the defence to request an interview with the physicians as witnesses, the court saw no impediment.
In the same case, the College of Physicians and Surgeons asserted that a court order or consent of the patient would be required before a physician could ethically consent to an interview. In response to this issue, the court concluded that by the fact of the litigation putting his health in issue, the plaintiff had consented to the treating physician releasing medical information. 8
The Queen’s Bench of Alberta 10
The Hall decision was again considered in 2001 by the Queen’s Bench 11 in which the court added these protective terms to the interview of the physician:
- It is conducted in the presence of counsel for the plaintiff;
- It is reliably recorded; and
- It is subject to plaintiff’s counsel being given the right to object to any question asked on the ground that (a) it contemplates the release of confidential information not relevant to the action, or of privileged information, and (b) the opportunity to have the merits of that objection adjudicated before the answer is given.
- Nothing requires the physician to participate in such an interview. If the physician does, the plaintiff’s lawyer is not their lawyer. If they wish to have their own counsel present, they should be entitled to require that.
This issue was again reviewed by the Alberta Court of Appeal 12 which reviewed at length the issue of the interview of an opposing physician. The immediate issue before the court was a simple one, namely, whether the plaintiff’s counsel may be present at the interview and take notes, as was ordered initially. On this point, the majority in a split decision agreed with the lower court. The court clearly viewed the entire process with a jaundiced eye.
The Alberta decision of Hay was criticized unfavourably in a later Ontario decision 13 as allowing uncontrolled access to the plaintiff’s physicians and potentially damaging the plaintiff’s inherent right to medical privacy.
Ontario on Physician Interview
The 1990 “Feleki” decision of the Ontario General Division, 14 was the first case to decline to follow the Alberta decision. Counsel for the defendant in a medical malpractice action, relying upon the decision in Hay, interviewed the plaintiff’s physicians without the consent or the knowledge of the plaintiff, which was revealed for the first time at trial.
The plaintiff moved for disclosure of details of the interview to which Craig J., in granting the motion, expressed his disagreement with two aspects of the Hay decision, namely that (1) there was a waiver of patient-physician confidentiality and (2) that the plaintiff impliedly has consented to the physician releasing information to the defence.
Craig J. concluded that the procedure for the disclosure of medical reports as set out in the Rules of Civil Procedure and the Evidence Act provided a proper means for the defence to have access to the medical information required.
The “Morin” decision of Wilkins J. of the Ontario Superior Court 15 followed in 1994. The motion before the court was a request to remove the defence counsel who had communicated with the plaintiff’s family physician and chiropractor following the release of their clinical notes and records to the defence.
The court refused to follow the decision of the Alberta court in Hay. Although the motion to remove counsel failed, the court did offer its views that counsel should not be in contact with the medical care providers of the opposing party.
The court also stated that although production of the clinical notes meant that privilege no longer attached to these documents, privilege or confidentiality still attached to the makers of these documents. No authority was given for this proposition.
The Hay case was reviewed by the Supreme Court of British Columbia. 16 During the course of the trial, defence counsel sought an order to allow them to hold informal discussions with the plaintiff’s physicians.
The court in this instance refused to follow the Ontario cases. 17 The court spoke to its view of Feleki, noting that it could not be determined if this case was decided on the basis of the need to retain doctor-patient confidentiality after the action was commenced, or the fear of the inadvertent disclosure of irrelevant confidential information.
As to the distinction drawn in Morin, the court questioned this aspect of the decision and noted that “there was a vast array of undoubted authority for the proposition that confidentiality is waived simply by the commencement of the action”.
The real issue, the court noted, was the extent of the waiver, in that there may be in the possession of the medical practitioner medical information which is not relevant to the issues in dispute and could be released inadvertently.
The trial judge in this instance noted that Hay failed to put in place any procedure for safeguards to prevent the release of irrelevant material by inadvertence or otherwise. The court added that the co-operation of the physician should be voluntary, adding that the physicians may, as was stated in Hay, choose to decline the request for the interview.
The following summary comments were noted:
- There is no doctor-patient confidentiality attaching to the plaintiff’s treating doctors concerning information relevant to the claims.
- Defendants’ counsel in this case are at liberty to discuss such matters with the plaintiff’s physicians in the absence of the plaintiff or her counsel.
- The commencement of an action is a waiver of doctor-patient confidentiality for medical matters relevant to and bearing upon matters raised in the action.
- Such waiver also constitutes as a matter of law an implied authorization to the physicians for the release of such information for purposes of the litigation.
- Absent privilege, the only basis for imposing any restriction on such discussion would be the risk of inadvertent release of irrelevant (and thus still confidential) information.
- It is not necessary for defence counsel to apply for approval to discuss the case with the plaintiff’s physicians, but as a matter of practice, general notice should be given to the plaintiff of an intention to seek informal discussions with named medical treatment givers. The notice should not be given until the limits of relevance and confidentiality have been set with reference to documents.
- The onus will then be on the plaintiff to make an application to bar or restrict such interviews.
- Plaintiffs’ treating doctors are to take part in such meetings. They may do so or not as they wish and may impose such conditions as they wish, just as any other witness may do.
- Where deletions have been made in doctors’ medical records, copies of the amended records should be supplied by defendants’ counsel and the doctors’ attention drawn to information still regarded as confidential. The Professional Conduct Handbook ought to be followed.
- Such informal discussions may go ahead if the doctors are willing. The patient is deemed to have authorized the release of medical information relevant to the lawsuit for the purposes of the Medical Code of Ethics.
Halliday Order
In British Columbia, the issue of procedural safeguards of patient interests was resolved in 1986 by the Court of Appeal 18 in which the plaintiff’s counsel was first allowed to review and discard irrelevant material. If there is any dispute, a judge will then determine relevance.
The British Columbia Supreme Court 19 reviewed the purpose of a Halliday order and concluded that it was intended to protect the three interests of discovery, privacy and privilege. Although “it should not take much to persuade a court that all three interests are to be protected”, it is not an order to which a patient litigant is entitled as of right but it should be granted where it is apparent that some right of privacy may be invaded and whenever a privileged or irrelevant document might be included in the material.
Jones Order
Absent reason to issue a Halliday order, the production order in B.C. is a “Jones” order referring to the B.C. Court of Appeal, 20 which confines the use of the productions to only the litigation.
Charter Values
In 1992 the Supreme Court of Canada 21 considered an application for hospital records in an insurance claim. The insurer had denied liability on the basis that the death was not accidental. 22 In the policy application, the insured had given permission for the release of medical records for “the purposes of risk assessment and loss analysis”.
The Supreme Court agreed that this constituted a waiver of the right of confidentiality, which under Quebec statute constituted the status of privilege, and ordered the production of the hospital records.
With respect to the right of the defence to access medical records, in the absence of an express waiver, the Court stated that there is a waiver of the right to privacy once the physical or mental well- being has become an issue in a law suit.
The Court 23 noted that the scope of the production order, however, must reflect “privacy” Charter values as a result of which the Court adopted a format of the production order similar to that of the British Columbia Court of Appeal in Halliday.
The 1996 Divisional Court 24 decision in a malpractice action refused the defence request that it be allowed to “speak with the plaintiff’s caregivers”. The court concluded that it was not necessary to decide the issue as to whether the mere commencement of the action released the physician from the duty of confidentiality.
It was acknowledged, however, that “it is clear from all authorities that no privilege attaches to doctor-patient information and that within the context of the action all medical information that relates to the cause and the extent of the injuries claimed must be disclosed.”
The Divisional Court concluded that the essential issue is not the need for medical disclosure, but simply what controls should be put in place over such disclosure. The court determined that the Rules of Civil Procedure accomplished that task fairly and no further controls were required. The order dismissing the motion to allow for defence counsel to speak to the plaintiff’s health care providers was upheld and the appeal dismissed:
The meaningful distinction between the Ontario cases on one hand and B.C. and Alberta cases, on the other, is, in essence, that the Ontario courts deny the right of the defence to interview the physician. The rules of production are similar in substance. There is no substantive difference should the physician in B.C. or Alberta decline the interview.
This issue was addressed by the Court of Appeal of New Brunswick in its 2002 decision 25 in it was called upon to review an order made allowing for defence counsel to interview the plaintiff’s treating physicians.
The lower court had found that “the patient-doctor confidentiality is removed once the action is commenced” and had allowed the interview subject to certain conditions. The trial judge had found favour with Hay.
The Court of Appeal agreed with the concept that once the litigation had commenced, the right to confidentiality was removed, entitling the adverse party to all relevant medical information.
The real issue was, as the Court noted “what degree and nature of control a court should exercise over the disclosure process”.
The Court of Appeal took the same approach 26 by concluding that the Rules provided a sufficient means of obtaining full disclosure of relevant medical information and hence set aside the order.
The Alberta decision in Hall was again considered by the Queen’s Bench. 27 The issue in question arose from a request made by defence counsel to interview the plaintiff’s treating physicians and secondly for production of medical reports sent by the plaintiff to his disability insurer.
The court continued to set out the rules of such “interview” again noting that the fact of litigation is not a waiver of confidentiality. The court also allowed the production of medical reports sent to the disability insurer.