Clinical Records in Courts

I didn't have a clue what lawyers did with all my clinical records. I assumed they read them. I assumed also the lawyer for the other side in disputes read them.  What I didn't know was that if they were to be used in discovery, in mediation or in court they had to be 'admitted'.  I imagine my records now  as a little stick figures, sometimes very fat little stick figures,  not allowed in some places because of the stuff they are carrying that no one wanted to hear about or a judge decided shouldn't be disclosed.  That said the lawyers who presented enlightened me to what could and could not be used in court, which parts, what a doctor could say based on another doctors opinion and even what a doctor could say about the notes of a dead doctor.  Fascinating legal stuff and all evidently reasonable as regards to 'evidence".
Not being a lawyer and not having to be concerned about the specifics  of the cases which were presented in synopsis and had the lawyers about me hot, I tended to think about just what I did put into notes and how I might word things in future if I thought they might be called upon. It also gave me more ideas about what courts were really needing in my notes.  These are the notes I took at the Trial Lawyer Association of BC Conference.
I must admit too that Jill Dougan had me sitting up straight when she reported that all professional associations have recommendations regarding note taking. She put up the notes from the College and I rapidly scanned them confirming I was in the ball park. It was a close call and a near panic because I can't remember ever reading the College notes on note taking. I found I enjoyed the rest of the presentation as my panic subsided.
The CD of the conference had alot more detail and was referred to repeatedly in this presentation.  I just wrote down bits that referred to me and am sure the lawyers would have taken far more extensive notes. It just gives a glimpse of the presentation.

Use of Clinical Records at Trial

Jill Dougans and Toni Rempel

Pihl  Law Corporation, Kelowna, BC

March 31,2012

Trial Lawyers Association of British Columbia

Essential Soft Tissue Injury Conference

Jill Dougans started in Vancouver, called to bar 1987, put on her first Trial Lawyer Conference some 20 years ago...has been litigator and arbitrator

Toni Rempel BA (Pol St) LL.B

Consider what is relevant according to Rule 7.1

scope of discovery

Trial Management Conference (TMC)

Items you may wish to consider

TMC

1 document agreements appendix 2

2 joint book of documents

1. notice to admit
2. Hyperlinked index and documents on a CD (appendix 3)

Clinical Records and Trial

Used at discovery and mediation

Evidence - long list of how to enter clinical information into testimony

Loynyk v Yeo 1988 Can Ll3101 BC CA

Mctavish v Boersma, 1997

Cunningham v Slubowskie et al, 2003

British columbia vs Harris

Samuel v Chrysler Credit, 2007

Edmondson v Payer, 20011

section 42 of evidence act

• if clinical records are admitted then questions of what in clinical records can be admitted
• admissable if made at time, by someone with duty to record, and with knowledge of the business
• doctors direct observation, medical advice, investigations are
• in absence of expert opinion - diagnosis in clinical records is admissable as diagnosis but not as the ‘true’ diagnosis
• if a meteriorlogist records that it was raining - whether he saw the rain or other meteriologist - document is admissiable, however if he saw an accident on way to work and recorded that that’s not admissable because he wasn’t in duty to record
• ‘hearsay’ in clinical record not admissable

In McTavish what is said to ER doctor attending is more reliable than later assessment

Clinical records - don’t have the questions or contexts, and were recorded for different purpose - not as reliable

As doctors often don’t recall meeting with the patient - clinical records are used to attempt to refresh doctors memory - courts require precise wording - testimony must come from testimony not reading

An expert may rely on hearsay

Mazura v Lucas 2010 BCCA 473

A trial can reject records admitted by consent at trial

-Samuel v Chrysler Credit

-clinical records should not be used unless counsell has identified ‘specific’ portion for a particular reason

Records admitted by consent at trial - connot object on appeal

-Smagh v Bumbrah - 2011,

Except if layperson

Use of Clinical records in medical malpractics cases

Cojocaru v BC Women Hospital - ordered an appeal

Brito v Woolley - was so upset that state of clinical records so said costs, but appeal overturned

Clinical Records and Professional Requirements

• all colleges contain professional expectations about records, how they are kept

__________________

Panel Discussion and Questions and Answers