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Use of Medical Records in Personal Injury Cases

 

ICBC will often require medical records before paying benefits or agreeing to settlement.  However, when going to court records may not be admissible without the author being called to testify. Also, expert opinion must be delivered under the strict rules of the court. This post will discuss the admission of medical records in personal injury cases.

A very good review of the use of admissibility of medical records was done by Judge  Steeves in Cambie Surgeries Corporation v. British Columbia (Attorney General),2018 BCSC 859The lawsuit started with a challenge to the Medicare Protection Act  under the Canadian Charter and related directly to the use of medical records in a civil case at para 10:

…In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if…

when taken together, [it] stand[s] for the following:

(1)        That the observations by the doctor are facts and admissible as such without further proof thereof.

(2)        That the treatments prescribed by the doctor are facts and admissible as such without further proof thereof.

(3)        That the statements made by the patient are admissible for the fact that they were made but not for their truth.

(4)        That the diagnoses made by the doctor are admissible for the fact that they were made but not for their truth.

(5)        That the diagnoses made by a person to whom the doctor had referred the patient are admissible for the fact that they were made but not for their truth.

(6)        That any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact. It is not necessary to expunge the statements from the clinical records as this is a judge alone trial.

[15]      Therefore any, and I emphasize the word “any”, opinions contained in the clinical records are not admissible for their truth. The opinions are admissible only for the fact that they were made at the time.

[14]         The approach in Seaman has been adopted by our Court of Appeal (Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, at para. 36).

Admissibility of business records

…[16] … a document must be:

a.         made contemporaneously;

b.         by someone having a personal knowledge of the matters being recorded;

c.         by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business; and

d.         the matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business.

[17]  Evidence that these requirements have been met is needed before a clinical record may be admitted into evidence…

[18]  As can be seen, under s. 42, business records (including, in this case, medical records), are admissible for statements of fact. The significance of this is that opinion evidence, such as medical issues on causation, are not admissible as a business records exception. 

It is usually best, personal injury lawyers, to have a treating witness available to testify if ICBC has denied that the clinical records are authentic business records. In this case example, 2018 BCSC 859 the court was considering affidavit evidence but in most injury cases the trial will involve live witnesses.

Keep reading about medical records sharing Medical Records with ICBC.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Affidavit Evidence, ICBC medical records, Rule 7-1(18) Non-party Records, Rules of Evidence

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