A recent court decision should serve as a warning to insurance company counsel who bypass plaintiff’s lawyers to obtain medical records, says Barrie-area litigator Steve Rastin.
“This practice violates patient-doctor confidentiality, violates the Rules of Practice and Procedure, violates the Rules of Civil Procedure, however, in some cases it appears to be a longstanding way of doing things,” says Rastin, managing partner with Rastin Gluckstein Lawyers.
Two Superior Court of Justice endorsements coming 11 months apart led to a defence lawyer being removed as counsel of record in an insurance claim.
‘Surprisingly common practice’
“Cases like these do not appear to have generated the attention that they should,” Rastin tells LegalMattersCanada.ca. “They represent a rebuke for a surprisingly common practice that has been going on for an extended period of time.”
He says the issue of defence counsel contacting a doctor to obtain a plaintiff’s medical records in an insurance claim seems to have evolved over time.
“As a lawyer who has practised for 25 years, I believe this happens frequently,” Rastin says. “Here’s the problem. A lot of what we do is on precedent. So, if you were trained by another lawyer that this is what you do, it’s going to be on your checklist.
Access to medical history
“There is this sense that when someone is in an accident and they are in litigation, their medical history is an open book and the defendant insurance company is entitled to probe their history to determine if their accident is really the cause of their disability if there are other pre-existing issues,” he adds.
Rastin says the first motion was filed in March 2019 and sought to have a defence lawyer in a personal injury case removed as the counsel of record.
According to the court, the motion concerned “the appropriateness of pre-trial correspondence and direct communication” between defence counsel and the plaintiff’s treating doctors.
At the heart of the matter was a letter sent to a doctor with a summons to witness requesting “a complete copy of the entire contents of your file, including test results, consultation notes, electronic medical records, lab results, correspondence, hand-written notes or any other material,” according to the court.
Shortly after the letter was sent, plaintiff’s counsel contacted the defence lawyer stating the request to the doctor was “something she is unable to do, legally and ethically,” court heard.
Sought removal of counsel
The plaintiff’s lawyer filed a motion stating removal of defence counsel “is necessary to protect and promote public confidence in the legal profession and the justice system.”
In his ruling, Justice Russell Raikes found “that a fair-minded and reasonably informed member of the public would be troubled by defence counsel’s conduct but would not remove him as counsel of record on the facts in this case. Frankly, it is a close call.”
Counsel for the plaintiff later discovered a 30-minute telephone conversation between the emergency room doctor who treated her client and a law clerk for the defence lawyer and filed a second motion.
- Find out how COVID-19 affects your insurance coverages
- Nuanced rules around appealing an LTD claim allow for some flexibility
In his ruling in February, Justice Marc Garson found that a letter sent to the doctor left the physician “with the clear impression” that he was to contact defence counsel’s law clerk to discuss the plaintiff’s medical records.
“The letter is troubling. The phone call is more troubling,” Garson writes.
“The integrity of both the legal profession and the administration of justice must be preserved. This includes avoiding conflicts of interest, respecting confidential and privileged information and not placing themselves in a position where such information may be improperly obtained and used.”
Rastin notes the circumstances in the case are not unprecedented.
“It is the insurance company’s job to probe the validity of the claim. Often in the early part of a case, the insurance adjuster will get a claimant to sign an authorization allowing them to talk with the treating doctors or get records from them,” he says. “However, the first thing any competent personal injury lawyer will do when they get involved in a file is to revoke those authorizations and make it known that any information required must come through their office.”
Rastin explains that while the defence counsel is entitled to disclosure, the proper rules must be followed.
“There was a substantive conversation between the law clerk and the doctor about the patient in this instance. First of all, the doctor shouldn’t do that because it violates patient-doctor confidentiality,” he says, “Someone out of the blue should not be able to call up your family doctor and ask questions about your medical condition. But the doctor disclosed that he felt that he was compelled because he thought the summons he received from the insurance company lawyer was a legally binding document that put him under pressure to do it.”
Crossing the line
If the defence is doing more than scheduling a time for a doctor to appear as a witness they “are probably crossing the line,” Rastin says.
He says it’s important to keep the plaintiff’s rights at the forefront in instances such as these.
“Their medical condition may be an issue but their expectations of confidentiality and privacy in regard to their medical records still remain,” Rastin says. “Just because they started a lawsuit doesn’t mean they give up that right.”
He says he has had concerns about the practice himself and praised the lawyer involved for bringing the matter to the court’s attention.
‘Hard work and dedication’
“This lawyer took extraordinary steps to shine a spotlight on this issue. It took a lot of hard work and dedication,” Rastin says. “This is by no means an isolated practice.”
He says he hopes the court decisions will have a lasting impact.
“For reasons that are not clear to me, these cases are not getting the attention they deserve. People should start paying attention,” Rastin says. “The profession is not going to change the way it operates unless there’s a clear reliance on these cases.
“This should put the defendants on notice. The proper requests for information must through plaintiff’s counsel.”