If you suffer from an injury or disability, you will likely
receive care from one or more health care practitioners. You will
probably be aware that a health care practitioner typically makes
records each time you see him or her. These records typically
document your comments, the health care practitioner's findings
and the health care practitioner's diagnosis and opinion. These
records help both the health care practitioner who makes the
records and any other health care practitioner who receives the
records to provide appropriate care to you.
If you are involved in a lawsuit arising from your injury or
disability, you may not be aware that these health records are also
important to your lawsuit. This article briefly discusses some of
the principal ways your health records will be used in this type of
Early Stages Of A Lawsuit
In the early stages of a lawsuit, your lawyer will typically
write for most of the relevant health records. This may include
records made both before and after the injury or disability that is
the subject of the lawsuit. Your health care practitioners will
provide your records to your lawyer as long as you have provided an
appropriate consent permitting them to do so. The opposing lawyer
(typically representing an insurance company) will sometimes ask
your lawyer to obtain and provide additional records. There are
rules and legal principles to help determine which health records
must be produced in a lawsuit, if the lawyers cannot agree.
These health records help the lawyers understand the case. They
will also provide context and support for the claims you are making
in the case.
An "examination for discovery" is a question and
answer session in which every party will be asked questions
relevant to the case, under oath or affirmation. When you attend
for your discovery, the other lawyer typically will already have a
significant number of your health records.
The other lawyer will ask you questions about the records. It is
important for your lawyer and for you to be familiar with the
information in these records before attending for discovery.
To help determine the extent of your injuries and impairments
and your potential needs arising from those, the lawyers will
typically arrange to obtain "expert opinion" from various
professionals, often including medical doctors and other health
To provide an appropriate opinion, an expert needs to review
relevant documents. An appropriate set of health records is one of
the most important sets of documents that a health care
practitioner will rely on in providing an expert opinion.
You may recall from previous "Ask A Lawyer"
articles in this newsletter that a large majority of lawsuits in
Ontario settle before reaching trial.
Nonetheless, if your lawsuit reaches trial, your health records
will be relevant to the trial in a number of ways. They are often
filed with the judge and jury so that they can review them. Both
you and other witnesses may also be asked questions arising from
the health records.
In addition, the health care practitioners who made the records
may be asked to attend trial and testify. Sometimes they will
testify simply based on the records that they made on an ongoing
basis. In other cases, your lawyer may have asked your health care
practitioners to prepare more detailed written reports commenting
on the issues in the case. If a health care practitioner has
prepared such a report, he or she can generally testify about
issues raised in the report as well as with respect to the records.
The opposing lawyer will be able to ask your health care
As you will see from the above, health records play an important
role in the typical lawsuit arising from injury or disability. It
is therefore important for you to be accurate and detailed when you
are relaying your symptoms and medical history to a health care
practitioner. The more accurate and detailed you are, the more
accurate and detailed the health care practitioner's notes will
be. Not only will this assist you in obtaining the best possible
health care, but it will also help establish and corroborate the
claims that you may be obliged to make in your lawsuit.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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