Shelving of medical records

​Who Has a Right to Your Medical Records After a Personal Injury Accident?

If you have been injured in an accident, whether a car accident, or a slip and fall on someone’s property, you may have concerns or questions about what role your medical records will play in the litigation

Who Do I Give My Records To?

You should always seek the advice of a personal injury lawyer to guide you through the process of procuring and producing your medical records to the appropriate parties, whether you are seeking no-fault accident benefits under an ICBC automobile policy, or trying to prove your damages to a third party.

If your insurer argues that your injuries did not arise from your accident or refuses to pay benefits on the basis that you have provided inadequate evidence of your injuries, you will be required to produce medical records. This will often be the case, as insurers are very hesitant to pay benefits without substantial evidence of the nature and extent of your injuries. Again, your lawyer can help you determine which medical records need to be produced and which to withhold.

If you accident benefits claim ends up in litigation or if you commence a lawsuit against a third party, your medical records will be produced in the “documentary discovery” phase of litigation. This is where all documents relevant to your case must be produced to the other side. Again, your lawyer will help you determine which medical records need to be requested and produced.

Who Will See My Records?

In a motor vehicle accident benefits claim or lawsuit, an insurance adjuster will review your medical records. A defence lawyer hired by ICBC will review your records in the event that litigation is required to settle your accident benefits claim.

Similarly, in a tort (negligence) claim against a third party (whether for a motor vehicle accident or other personal injury case), the defence lawyer will review your medical records. The insured defendant (e.g., an at-fault driver or property owner) usually participates very little in the litigation, except to respond to questioning under oath about his or her liability, and likely will not review your medical records.

Why Does The Defence Need My Medical Records? 

The defence wants proof that the accident genuinely caused the injuries you are suffering from. The defence will review notes surrounding the dates of the accident in order to ascertain whether you sought medical attention following your accident, and what was diagnosed.

Further, the defence will want to check whether the injuries you say arose from an accident did not already exist before the accident (for example, long-term back pain). They will also want to review whether the notes suggest when and if you recovered from your injuries, in order to ascertain the severity of your injuries.

Can I Deny Access To The Records?

There is nothing at law requiring you to disclose your medical records to any person, for any reason, in a civil litigation proceeding. Further, there is nothing wrong with protecting your privacy and holding back information that may harm you, especially if it is personal information unrelated to your case. However, choosing not to provide information where the records are relevant can make your case more difficult to prove.

You can discuss with your lawyer any concerns you have regarding very sensitive medical records being disclosed. Sometimes, where an entire bundle of records appears to be relevant (e.g., your family physician’s notes), your lawyer may recommend instructing him or her to redact (i.e., black out) any information within the package of documents that is sensitive and very clearly irrelevant. Your lawyer may explain the general nature of redacted content to the opposing lawyer in order to explain why it is irrelevant. That being said, if the defence lawyer is not convinced, he or she may bring a motion to produce the redacted records. If the motion is decided in the defence’s favour, neglecting to abide by the order may adversely affect your claim’s chance of success and put you at risk of being in non-compliance of a Court Order and therefor in contempt of Court.

If I Don’t Consent, Will It Affect How Much My Claim Is Worth?

If you do not consent to providing medical records that are relevant to your case, it can unfortunately affect the value of your claim. In particular, there may be doubt cast about the authenticity of your claim. Further, even if the records being requested are those which you and your lawyer do not believe are relevant, the defence may still make a motion to have the records produced.

If the defence succeeds, and the documents are ordered to be produced, a negative inference may be drawn about the contents of the documents if they are relevant to your case. In other words, the court is entitled to find that the information omitted would be detrimental to the value of your claim.

How Far Back Do My Records Need To Go?

The timeframe of records to be produced is always a question of relevance. Your lawyer will help you determine the timeframe of records to request from your doctors and other medical professionals.

Often, records pre-dating the accident by approximately two years is adequate. However, if anything in that set of records gives rise to the possibility that records from even further back are relevant, the defence may request or bring a motion to have these produced. Your lawyer will make all possible arguments against production where the requests are unreasonable. 

When Do I Need To Provide Updated Medical Records?

Again, your lawyer will help you determine whether it is appropriate to concede to a request by defence to produce updated medical records. Generally, if it is clear that an injury has resolved, further updates will not be needed. However, if you are alleging chronic pain or other ongoing complications from your injuries, defence will usually seek updates every few months until the matter is resolved. 

Contact Kenneth Cristall Law Corporation, PERSONAL INJURY LAWYERS In Vancouver To Protect You

Protecting your rights when it comes to producing medical records is one of the crucial tasks that your personal injury lawyer will perform. Speak to our personal injury lawyers in Vancouver, Surrey, Langley, Coquitlam and Burnaby. We can provide guidance on proceeding with your accident benefits claim or personal injury lawsuit. Contact us at 604-654-2250.

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