Use of medical records at trial – Review

Unless you are preparing and assisting for trial, the rules as it relates to medical records at trial may not be in the forefront of your mind.  Therefore, here is an excellent outline from a very recent decision in 2022 which took place in Victoria regarding the rules and principles as it relates to use of medical records at trial.

I will enumerate the paragraph here – and this is really thorough and detailed and should be studied as a refresher for everyone.

Use of Medical Records

[56]         When the trial resumed in 2021, Mr. Einboden’s replaced left hip had become problematic to such an extent that it had to be removed. Mr. Einboden attended trial with a temporary spacer in his left upper leg, and was scheduled for hip reconstruction surgery shortly after the trial.

[57]         Both parties faced significant hurdles in respect of the medical evidence: the plaintiff in proving his case without a consistent contemporaneous chain of medical records or opinion; and the defendant in marshaling medical opinions in the absence of that chain.

[58]         The defendant relies on medical opinions that in turn rely on medical information generated in the ten years or so before the accident. For example, Dr. Moll, a neurologist who examined the plaintiff at the request of the defendant, had recourse to medical information generated by the following: Dr. Martin (neurologist); Dr. Hern (psychologist); Dr. Parton (neurologist); Dr. Marcus (chiropractor), in addition to records of Dr. McQueen and Dr. MacLeod, both of whom testified at the trial.

[59]         None of the clinical records summarized by Dr. Moll are in evidence. While Dr. Moll is also entitled to rely on information he considers reliable and necessary to enable him to reach an opinion, until properly proven such information simply remains assumptions upon which his opinion is based. The weight accorded to the opinion is affected by whether the assumptions have been properly proven.

[60]         In this case, it is important to bear in mind the use to which the parties or the court may put medical or clinical records. This question was thoroughly canvassed in Edmondson v. Payer, 2011 BCSC 118, appeal dismissed 2012 BCCA 114. At paras. 23-39 Smith J. said:

[23]         Much of the defendant’s submission on the plaintiff’s credibility flows from what is, or is not, found in the clinical records of doctors the plaintiff has seen. It is therefore important to review the limited purposes for which clinical records are admissible. It is easy to lose sight of those limitations in cases of this kind, where the time spent parsing a single note made by a doctor often far exceeds the length of the medical appointment that the note records.

[24]         Clinical records may be admissible as business records pursuant to s. 42 (2) of the Evidence Act, R.S.B.C. 1996, c. 124 [Evidence Act], which reads:

(2) 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

(a) the document was made or kept in the usual and ordinary course of business, and

(b) it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time after that.

[25]          In Olynyk v. Yeo (1988), 55 D.L.R. (4th) 294, 33 B.C.L.R. (2d) 247 [Olynyk cited to D.L.R.], the Court of Appeal said at 300:

The words “to record in that document a statement of the fact” mean, in our opinion, that the fact occurred within the observation of someone who has a duty himself to record it or to communicate it to someone else to record as part of the usual and ordinary course of business.

[26]         Section 42 of the Evidence Act therefore makes records admissible to prove such things as a doctor’s direct observations of the patient’s medical condition, the results of tests performed or ordered by the doctor, and the medical advice given. It eliminates the need for doctors to give oral evidence of those facts, of which they are unlikely to have independent recollection. But as the court noted in Olynyk, this “does not make everything in a document admissible just because the document is one which for some purposes falls within the section.”: at 301.

[27]         The principles governing the admissibility and use of clinical records (and business records generally) were summarized by Burnyeat J. in McTavish v. MacGillivray (1997), 38 B.C.L.R. (3d) 306 at 311-12 (S.C.):

1. The notes taken must be made contemporaneously.

2. The notes must be made by someone having a personal knowledge of the matters being recorded.

3. The notes must be made 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.

4. 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.

5. A statement in the records of the fact that a certain diagnosis was made will be admissible.

6. Recorded observations, diagnosis and opinions will be admissible providing they are recorded in accordance with points 1 through 4.

7. The fact that the referring doctor relied upon another doctor’s opinion to assist in coming to his or her own diagnosis and opinion is only evidence of that fact so that the other opinion does not become evidence unless it is otherwise admissible. Accordingly, it is only evidence of the fact that the referring doctor wished or required that opinion to be received before forming his or her own opinion.

8. Statements made by parties or by experts which are recorded in the usual and ordinary course of business but which lie outside the exception to the hearsay rule are hearsay and will not be admitted into evidence unless they can be brought within Section 14 of the Evidence Act which allows for the admissibility of such statements if it can be shown that they are proof of a prior inconsistent statement.

[28]         The last point refers to the procedure for cross-examining a witness on a prior inconsistent statement. Section 14 of the Evidence Act reads:

(1) Subject to subsection (2), if a witness, in cross examination as to a former statement made by the witness relative to the subject matter of the proceedings and inconsistent with the present testimony of the witness, does not distinctly admit to making the statement, proof may be given that the witness did in fact make that statement.

(2) Before giving the proof referred to in subsection (1),

(a) the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and

(b) the witness must be asked whether or not the witness made the statement.

[29]         Portions of clinical records that report statements made by the plaintiff, including the plaintiff’s description of symptoms, are therefore evidence of the fact the plaintiff made the recorded statements on those occasions. Where the recorded statements are inconsistent with the plaintiff’s evidence at trial, they may be used in cross-examination to impeach the plaintiff’s credibility.

[30]         Unlike prior inconsistent statements of an ordinary witness, which may only be used to impeach credibility, prior inconsistent statements of a party may also be treated as admissions and  accepted for the truth of their content. However, there are important qualifications that apply to such statements in clinical records, whichever purpose they are being used for.

[31]         In Diack v. Bardsley (1983), 46 B.C.L.R. 240, 25 C.C.L.T. 159 (S.C.) [cited to B.C.L.R.], aff’d (1984), 31 C.C.L.T. 308 (C.A.), McEachern C.J.S.C., as he then was, referred to differences between the evidence of a party at trial and what was said by that party on examination for discovery, at 247:

… I wish to say that I place absolutely no reliance upon the minor variations between the defendant’s discovery and his evidence. Lawyers tend to pounce upon these semantical differences but their usefulness is limited because witnesses seldom speak with much precision at discovery, and they are understandably surprised when they find lawyers placing so much stress on precise words spoken on previous occasions.

[32]         That observation applies with even greater force to statements in clinical records, which are usually not, and are not intended to be, a verbatim record of everything that was said. They are usually a brief summary or paraphrase, reflecting the information that the doctor considered most pertinent to the medical advice or treatment being sought on that day. There is no record of the questions that elicited the recorded statements.

[33]         When statements of a party are relied on for the truth of their content, the authors of Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009) point out at paragraph 6.398 that one rationale for the admissibility of such statements is that “it is always open to the party to take the witness box and testify either that he or she never made that admission or to qualify it in some other way.”  The authors also emphasize at paragraph 6.413, that the whole of a statement must be put into evidence:

Thus, if an admission contains statements both adverse and favourable to a party and if an opponent tenders it, he or she may thereby be adducing evidence both helpful and damaging to his or her cause.

[34]         The difficulty with statements in clinical records is that, because they are only a brief summary or paraphrase, there is no record of anything else that may have been said and which might in some way explain, expand upon or qualify a particular doctor’s note. The plaintiff will usually have no specific recollection of what was said and, when shown the record on cross-examination, can rarely do more than agree that he or she must have said what the doctor wrote.

[35]         Further difficulties arise when a number of clinical records made over a lengthy period are being considered. Inconsistencies are almost inevitable because few people, when asked to describe their condition on numerous occasions, will use exactly the same words or emphasis each time. As Parrett J. said in Burke-Pietramala v. Samad, 2004 BCSC 470, at paragraph 104:

…the reports are those of a layperson going through a traumatic and difficult time and one for which she is seeing little, if any, hope for improvement. Secondly, the histories are those recorded by different doctors who may well have had different perspectives and different perceptions of what is important. … I find little surprising in the variations of the plaintiff’s history in this case, particularly given the human tendency to reconsider, review and summarize history in light of new information.

[36]         While the content of a clinical record may be evidence for some purposes, the absence of a record is not, in itself, evidence of anything. For example, the absence of reference to a symptom in a doctor’s notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom. At most, it indicates only that it was not the focus of discussion on that occasion.

[37]         The same applies to a complete absence of a clinical record. Except in severe or catastrophic cases, the injury at issue is not the only thing of consequence in the plaintiff’s life. There certainly may be cases where a plaintiff’s description of his or her symptoms is clearly inconsistent with a failure to seek medical attention, permitting the court to draw adverse conclusions about the plaintiff’s credibility. But a plaintiff whose condition neither deteriorates nor improves is not obliged to constantly bother busy doctors with reports that nothing has changed, particularly if the plaintiff has no reason to expect the doctors will be able to offer any new or different treatment. Similarly, a plaintiff who seeks medical attention for unrelated conditions is not obliged to recount the history of the accident and resulting injury to a doctor who is not being asked to treat that injury and has no reason to be interested in it.

[38]         The introduction of clinical records cannot be used to circumvent the requirements governing expert opinion evidence set out in Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/ 2009 [Rules]. A medical diagnosis−and the reasoning that led to the diagnosis−is a matter of expert opinion. Clinical records are admissible for the fact that a diagnosis was made, but the court cannot accept the diagnosis as correct in the absence of proper opinion evidence to that effect. Depending on the facts and issues in a particular case, the mere fact that a diagnosis was made may or may not be relevant.

[39]         Clinical records may provide the assumed facts on which an expert may offer an opinion, including diagnosis. For example, statements made by the plaintiff and recorded in clinical records at various times may be relied on by a defence expert in concluding that the plaintiff’s current symptoms are the result of a condition that pre-dated the accident. That does not mean that the court can itself use clinical records to arrive at a medical diagnosis in the absence of expert opinion.

[61]         There is little in the way of medical opinion from doctors consulted by Mr. Einboden in Florida. He and Ms. Einboden explain this by saying that when the family moved to Florida they had to get temporary medical insurance because there was a two-year qualification requirement for Blue Cross/Blue Shield and the family did not have enough money to pay a doctor privately. When the family got medical coverage from Blue Cross/Blue Shield, it excluded treatment for neck and back injuries and additionally, many doctors refused to treat him when they found out that his problems or complaints stemmed from a motor vehicle accident.

[62]         I accept this explanation and find nothing sinister in the gap in medical evidence, but that does little to aid Mr. Einboden to prove his case.

Case reference and link:  Einboden v Porter, 2022 BCSC 29 (CanLII)