How Will My Health Records Be Used in a Trial?
Personal injury litigation begins with the collection and sharing of all your health records with the lawyers and parties involved in your action. This article will explain some of the ways your health records will be used by the lawyers at trial.
Clinical Notes and Records
During the presentation of your case, your lawyer may put all clinical notes and records of a doctor in as evidence. By doing this, the lawyer is vouching for the doctor’s work as ‘business records’ according to section 35 of the Evidence Act R.S.O. 1990, c. E23. By using the records in this way, the lawyer is making the records available to the judge or jury to prove the facts contained in the records such as the medications you were prescribed or the times you visited.
Your lawyer may also call your doctor as a witness, and your health records will be explained for the judge or jury in detail. The doctor may be asked to explain short forms or to help the lawyers read their handwriting. If the records are completely illegible, a doctor may sometimes be asked to transcribe their notes in accordance with O. Reg. 114/94 General enacted under the Medicine Act 1991 S.O. 1991, c. 30, s. 18(3). This Regulation requires members of the College of Physicians and Surgeons to keep legible records.
When you are called to testify, your health records may contradict some of the things you say. If this is the case, during cross-examination, the Defendant's lawyer will put a copy of the records in front of you and show the contradiction. This is a common law rule of evidence from the case Browne v. Dunn (1893) 6 R. 67, H.L. This rule allows you to review the evidence, and explain any contradictions.
Your health records will demonstrate the same complaints over a long period of time. However, by the rule against hearsay – your lawyer will not be able to use this consistency to support your credibility.
On the other hand, the rule against hearsay does not prevent the Defendant lawyers from using inconsistencies during cross-examination. Therefore, inconsistencies in the health records can be used against you, but consistencies cannot be used to show that your complaints are more likely to be true.
Lawyer may put entire clinical notes and records in as true
- Section 35 of the Ontario Evidence Act, R.S.O. 1990, c. E23 allows lawyers to file business records made in the ordinary course of business (including clinical notes and records) as exhibits at trial to prove the truth of the facts contained in those records. Appropriate notice must be provided to the opposing side in advance of trial.
Lawyer may call your doctor to testify and explain what is in the notes.
Lawyer may require your doctor to transcribe their notes if they are not legible in accordance with the requirements of the Medicine Act 1991
- The Regulation requires that medical records be legible. (Medicine Act 1991 S.O. 1991, c. 30, s. 18(3))
- This can be accomplished through legible handwriting, typed entries, voice dictation and transcription, electronic medical records, or handwriting recognition software. The College of Physicians and Surgeons of Ontario expects that information in a medical record can be understood by other health professionals.
The Rule from Brown v. Dunn
- Your records will be put in front of you if the lawyer expects you to comment on them
- Your health records will often show that you have made the same complaint consistently for a long period of time
- By (the rules of Evidence? – find citation for here) your lawyer cannot argue that just because you have consistently complained of something makes it more true. This is called oath helping. This is not allowed in Canadian law.
- It is a rule of evidence because it has been observed in criminal trials that a lie can be as consistent as the truth, so asserting that someone has said something many times does not make it more true.
- However, there is no rule in evidence barring the Defendants in action from pointing out inconsistencies in the medical records.
- For example, if some things are complained about infrequently or with large changes in severity (headaches daily changing to never and back to daily).
- The Defendants may point out that the Plaintiff has been inconsistent and is, therefore, not credible.