What limitations exist, if any, on a defendant’s ability to obtain a plaintiff’s complete medical history, both pre and post incident?

 

Introduction

A Defendant may obtain a Plaintiff’s complete medical history by requesting orders for discovery in the proceedings or by issuing a subpoena to the Plaintiff’s health care or medical practitioner(s) in circumstances whereby discovery in a proceeding is not forthcoming.

Notably, the onus lies with the third party/medical practitioner and/or the Plaintiff to object to production of the documents sought under cover of a subpoena.

Discovery of Plaintiff’s documents

Victoria

In Victoria, Australia, proceedings are conducted in accordance with the Civil Procedure Rules contained in the Civil Procedure Act 2010 (Vic) (Civil Procedure Act) as well as the Rules contained in the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Supreme Court Rules) and the County Court (General Civil Procedure Rules) 2018 (Vic)(County Court Rules) (Collectively ‘Rules’).

In civil and common law proceedings, the Court will (as a general rule) make orders requesting that the parties exchange discovery (this may be limited or wide) and/or require the parties to file an affidavit of documents listing the documents in each party’s possession[1]. A Court may also order that discovery be made by a non-party to the proceeding[2].

It is notable that parties to a proceeding have what is known as overarching obligations under the Civil Procedure Act. These obligations include an obligation which requires the parties to disclose the existence of documents which are relevant or critical to the determination of a matter. This obligation is ongoing[3].

A failure to make discovery may entitle a party to costs and/or dismissal of the proceedings for want of prosecution unless an exception such as privilege is claimed[4]. Further, the Court has inherent powers to make orders for examination or production of documents as they consider appropriate[5].

Subpoena

Where a Plaintiff has objected to production or inspection of documents during the litigation process, a Defendant may issue a subpoena pursuant to order 42A of the Supreme Court Rules or the County Court Rules to compel the Plaintiff to produce the documents.

Objection to production of documents versus inspection of documents

An objection can take two different forms:

• Objecting to the form of the subpoena – this includes objecting to the whole or part of the subpoena on the basis the subpoena is bad at law or that it ought to be set aside; and/or
• Objecting to inspection of specific documents under cover of a subpoena – typically this is claimed when a party is seeking that particular documents or classes/categories of documents ought not be inspected by the issuing party for reasons such as client legal privilege.

Court Process for objection to a subpoena

An objection must be made before production of documents becomes due under the subpoena. The addressee or a party/person with sufficient interest (this may not be a party or the addressee) will be required to advise the court that it objects to the production and/or inspection of documents.[6] Practically, it is recommended that as soon as a party or interested party wishes to object to a subpoena it puts the issuing party and the Court on notice by way of a short letter to the relevant Registry/Prothonotary and it must set out the basis for the objection in that notice.

At this juncture, Order 42.09(7) of the Rules inhibits the Court from permitting production or inspection of documents and the matter is then referred (traditionally to an Associate Judge of the Court) for hearing and determination. All parties will then be notified and have an opportunity to appear at the hearing.

Generally, the process of an objections where the matter is listed for a hearing will include that:

1. the objection is supported by affidavit evidence in respect of the grounds upon which the Defendant is opposing the production or inspection of documents;
2. submissions are made on the nature of the grounds being relied upon and the law; and/or
3. Orders proposing that the Court inspect the documents to the exclusion of the issuing party before making any decision.

Grounds for Objection

There are a number of grounds upon which a third party, typically, a medical practitioner or a party to a proceeding may object to a subpoena and/or inspection of documents sought under cover of a subpoena.

In the context of medical negligence proceedings and obtaining medical records of patients, privacy, confidentiality, and lack of patient consent, are not grounds, in themselves, for objecting to the production of documents or to the inspection of documents under cover of a subpoena. The common law does not recognise any privilege attaching to doctor-patient relationships.

Grounds for objection to production include the following:

1. Abuse of Process:

• • Lack of Legitimate Forensic Purpose (LFP) and relevance to the proceedings

The onus lies upon the issuing party to establish, expressly and precisely, the legitimate forensic purpose for which access to documents is sought. This must be established in order for the documents to be produced. In short it is the process of identifying how the documents would assist in the resolution of the case and if they are relevant to the resolution of the case. A subpoena may constitute an abuse of process where it has not been served bone fide for the purposes of obtaining relevant evidence.

The test for relevance in this instance would require any Defendant issuing to confirm that ‘it is on the cards’ or there is a ‘reasonable possibility’ that it will assist its case.

In a request for medical cases Relevance is particularly important to access medical documents

For example, in the matter of Alinta Sales Pty Ltd v Woodside Energy Pty Ltd[7] with respect to the questions of the legitimate forensic purpose and relevance of the subpoena in that matter, the Court stated:

“There is a legitimate forensic purpose for the issue of a subpoena for documents in respect of a document or class of documents that is apparently relevant.

Apparent relevance is a low threshold. It is not a question of whether it appears that the party issuing the subpoena could, or could probably, tender the documents in evidence. Rather it is enough to establish apparent relevance if a document or class of document gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination.

In determining relevance, the difficulty of assessing relevance prior to trial must be taken into account. The necessity for having a document in order to fairly dispose of the issues at trial might well not become apparent before trial.

Ultimately the relevance of the document produced is for the arbitrator. It is not appropriate for the Court to embark on a detailed preliminary inquiry involving evidence from the party seeking to issue the subpoenas and the company (or companies) against whom the subpoenas are sought to be issued.

….

Apparent relevance is to be assessed by reference to the issues in the arbitration taking into account the competing contentions of the partis.

Generally, at least in considering questions of apparent relevance, the court should not attempt to resolve questions of construction that arise between the parties…”

2. Oppressive and Fishing Expedition:

• • The language of the Subpoena is imprecise and vague, oppressive and/or tantamount to

ordering discovery against a person:

A subpoena which is unclear, expressed imprecisely, or unreasonably broad is likely to be considered oppressive. In addition, time might be a factor as to how long it would take the addressee to comply with the subpoena; this would include requiring the addressee to provide voluminous documents to be produced. It would be recommended that when issuing, a covering letter be attached dealing with these issues and costs which would then undermine any objection on this particular ground.

Generally, the Court will consider objections to each class of documents which are identified in a subpoena separately, save for in circumstances whereby the subpoena is so broadly drafted that it is considered uncertain or oppressive. It is likely in those circumstances the Court will reject the subpoena on that basis without considering each class individually. Therefore, it is imperative that a subpoena is drafted specifically to the issues in dispute and seek documents which are only relevant to the issues outlined in the pleadings[8]. For example, the documents may be the subject of medical conditions raised in the proceedings or be the subject of a referral for treatment[9].

• • The subpoena is a fishing expedition and an abuse of process:

This is typically the case in circumstances whereby the class of documents sought are too wide and are irrelevant or ancillary to the proceedings.

A ‘fishing expedition’ of documents will not be permitted. However, in some cases, it has become evident that knowing which documents might not be obvious at the time of the request, and so it may be necessary to request a wide range of documents in order to address the substantive issues of a proceeding.

Therefore, when a party is issuing a subpoena for pre and post incident medical reports, they should be conscious that their request is not too wide so as to be oppressive and risk being set aside or struck out.

3. Confidentiality/Medical Privilege under the Evidence Act

Whilst at common law, medical privilege has not been recognised for a number of years, section 28(2) of the Evidence Act 1958 (Vic) appears to impose patient-doctor confidentiality and acts as a limitation to disclosure without client consent. It provides that:

“No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.”

Whilst a doctor or patient may use this section to impede production and/or inspection of medical records, it appears to be the subject of waiver by disclosure. Typically, waiver of consent to medical records will occur by reason of the plaintiff pleading their case to the extent that an inconsistency or unfairness arises between the making of the assertion and the maintenance of the privilege[10] (as determined by the Court). Therefore, the application of section 28(2) will be subject to the facts of each case and the extent to any unfairness or inconsistency caused by how the privileged communication has been used.

Objection to inspection

In circumstances whereby a party has not been successful in opposing production of documents the party may subsequently seek that inspection of the documents be limited to classes or categories of documents[11]. It is notable that, the documents in answer to a subpoena are produced to the Court and not to the parties[12].

Pursuant to Order 42A.08 of the Rules, the plaintiff may object to inspection of the documents by writing to the Prothonotary of that objection and the grounds for the objection before the day specified in the subpoena for production to take place. Further, if a defendant seeks by subpoena the production of any hospital or medical file or record concerning the plaintiff or the plaintiff’s medical condition, the plaintiff may before taking objection inspect the file produced and notify the Prothonotary of any objection the plaintiff has to inspection by the defendant, provided that the plaintiff makes that inspection and notifies the Prothonotary of the ground of that objection in writing within seven (7) days after the day specified in the subpoena for production of the file or record to the Prothonotary.

Objection to inspection will be determined upon relevance of the documents[13]. In short, evidence that is relevant to the substantive issues of the proceeding will likely be admitted. The Court has a general discretion to include or exclude evidence[14].

Other states

New South Wales

The process of discovery and inspection of documents in New South Wales is found in Part 21 of the Uniform Civil Procedure Rules 2005 (Nsw) (UCPR NSW). The Court will generally use its inherent power to determine whether to require and/or limit discovery[15]. The UCPR prescribes that discovery can only be made for a specific class or classes of documents and documents which are relevant to the substantive issues in the proceeding[16]. In personal injury cases, the Court may not make a specific order for discovery unless special reasons are shown. For example, where it will be allowed is in circumstances where documents are in the possession of the other party and are necessary to enable an expert to prepare a report[17]. An affidavit in support will be required.

Orders 31.33 and 33 otherwise provides the rules for the issuing of a subpoena for the production of medical records. The process of issuing a subpoena and the grounds of objection are similar to those in Victoria and are discussed above including on the grounds of:

• a Legitimate Forensic Purpose[18];
• that the material is relevant to the proceedings;
• that the relevance is determined as to whether “it is on the cards”[19];
• that the information sought will assist the party’s case; and
• if the subpoena is an abuse of process, that the documents requested are specific and not a fishing expedition and the subpoena is not oppressive.

Queensland

The process of discovery and inspection of documents in Queensland is found under Order 414 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR QLD). However, those rules were amended in August 2018 following the introduction of the Uniform Civil Procedure (Subpoena) Amendment Rule 2018 which amended Chapter 11, Part 4 of the UCPR. It was amended to enable online requests, issuing and service of subpoenas, to ensure clarification of how documents can be produced and inspected and to specify costs. The grounds for objections in Queensland are similar to those outlined for Victoria (including legitimate forensic purpose/relevance, fishing expedition and oppression).