For many years, it has been well recognized that, where an Application is made by the Defendant to the Court seeking to compel the Plaintiff to share his pre-accident Medical Records, the Court will invariably order that the Plaintiff does so; so that the Defendant can have sight of the state of the Plaintiff’s state of health prior to the accident and what bearing that had on injuries sustained by him in the accident the subject matter of the Proceedings.
What has not been as certain is whether a Court will grant access to Medical Records post-accident.
This issue arose for discussion in the Decision of Mr. Justice Twomey in the case of James Egan Plaintiff-v- Castlerea Co-Operative Livestock Mart Limited Defendant [2023] IEHC 16 under record number 2020/2693P delivered 17th January 2023.
Circumstances of Accident
The Plaintiff Mr. Egan sustained injury to his left shin from contact with a bullock at the Mart on the 13th November 2017. When the Defendant applied for pre-accident and post-accident Medical Records, the Plaintiff’s Counsel stated that they were willing to share his pre-accident Medical Records but were not prepared to share his post-accident Medical Records, stating that the Defendant would have sight of the Plaintiff’s Medica Reports and that would be sufficient.
Background
The Plaintiff was claiming damages for “ongoing leg pain” and also ongoing lower back pain resulting from the accident. In Replies to Particulars delivered there was also reference to the Plaintiff’s involvement in a previous road traffic accident in October 1999. Post-accident, the Plaintiff had also attended with an Orthopaedic Surgeon and had an MRI of his lumbar spine, demonstrating compression of his L5 nerve root and there was a suggestion that the L5 nerve root had been aggravated by the trauma sustained in his 2017 accident.
The Defendant stated that it was vital to obtain both post-accident and pre-accident Medical Records because it regarded these as vital to understand the nature and extent of the difficulties experienced by the Plaintiff in his leg due to the L5 nerve root compression prior to the accident.
The Judge’s Decision
The Judge stated that the key factor in determining whether the post-accident Medical Records were discoverable was whether they are relevant and necessary for the fair disposal of the matter. The Medical Records could demonstrate that there was an overlap with the various other accident injuries. While he accepted that compelling a Plaintiff to deliver Medical Records constituted a significant breach of privacy, he stated that it was clear, from McGrory -v-ESB [2003] 3 I.R 407 at p.414, that a Plaintiff who decides to seek damages from a defendant for personal injuries waives his right to privacy in relation to his medical condition. For that reason, as a general principle, he stated that it seemed to the Court that post-accident Medical Records are not only relevant but invariably crucial to every personal injuries claim.
The Injuries in this Claim
The Judge stated that it seemed clear that there was a possible overlap between the Plaintiff’s back and leg complaints arising from the accident and his pre-accident history of L5 issues in his back. Accordingly, the post-accident Medical Records were particularly relevant in this case.
“Keeping parties honest” in litigation.
Quoting Clarke C.J in Tobin -v- Minister for Defence [2020] I.R. 211 at para 7.3, stating: “Discovery can also play a role in keeping parties honest, for it cannot be ruled out that some parties might succumb to the temptation to present a less-than-full picture of events to the court, were it not for the fact that they know that any attempt to do so may be significantly impaired if there is a documentary record which shows their account either to be inaccurate or materially incomplete” (Emphasis added by Judge).
97% of Personal Injury Cases Settle
On the Plaintiff’s Barrister’s contention that these Medical Records were not necessary as it would be open to the Defendant’s Barrister to cross-examine the Plaintiff on his Medical Reports at the Hearing, the Judge commented that the reality was that in the vast majority of cases, there would be no cross-examination of a medical expert, because reliance is placed on documents, and not oral evidence in cross examination, to reach a resolution of a claim.
Accordingly, the Judge had no hesitation in ordering that the Plaintiff discover his post-accident Medical Records.
Time span for the discovery of post-accident medical records?
While noting that the defendant was merely seeking three months post-accident medical records, the Judge commented that, wherein the normal course the court will direct the Plaintiff to furnish medical records for the three year pre-accident period, the Judge hinted that he would have had no difficulty in granting discovery of medical records for the three years post-accident period and stated that the court had no hesitation in granting Discovery for that limited period requested.
Are all Plaintiff’s dishonest?
While no doubt the obligation of plaintiffs to furnish both pre-accident and post-accident medical records will cause many headaches for Hospitals, Medical Consultants and GPs the reality is that the medical records will in then normal course show a more true and accurate record of the plaintiff’s injuries and treatment where, in the writer’s view, the purpose of the medical report is to ascertain a professional consultant`s prognosis for the future. There is therefore a lot of commons sense in what the Judge states in his reasoning for ordering the delivery of post-accident medical records.
What the writer is however concerned about is the repetition throughout the Judgement of the Judge’s desire to “keep the parties honest” where, no doubt, that reference is to the Plaintiff. All too often, and no doubt due to the continuous blaggarding of accident victims by insurance companies (honest or dishonest), there is certainly an impression on the part of the public that accident victims tend to be dishonest in the presentation of their claims to the Court. This is certainly not the case. If anything, it is the writer`s experience that some insurance companies approach all accident victims as if they are dishonest.
Many Accident Victims just want their life back!
No accident victim (unless of course they are genuinely dishonest in the first instance!) ever asked to be involved in an accident. Many who are involved in accidents go through life-changing injuries and would do anything to get their life back, as it existed prior to the accident.
As noted by Judge Twomey, 97% of Personal Injury cases settle and this is because the vast majority of accident victims want to settle their claims, do not want to go to Court and simply want to get on with the rest of their life.
Such honesty should also be recognized.
For further information on Accident / Personal Injury Claims you should contact:
Brian Morgan
Morgan McManus Solicitors
Web: www.morganmcmanus.com
Email: bmorgan@morganmcmanus.ie
Ph. No.: 00353 47 51011
Have you read our Guides:
- The 7 immediate Steps I must take if I`m involved in a Road Traffic Accident: Morgan-McManus-7-Steps-To-Take-After-a-Car-Accident.pdf (morganmcmanus.com)
- The 7 immediate Steps I must take if I have been involved in a Workplace Accident: 7-Steps-to-Take-After-a-Workplace-Accident.pdf (morganmcmanus.com)
- Do I need a Solicitor when filing a PIAB Personal Injury Claim?: Do-I-need-a-Solicitor-when-filing-a-PIAB-Personal-Injury-Claim-FINAL.pdf (morganmcmanus.com)
*In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.