Disclosure of medical records in litigation.

Abstract

In negligence claims against doctors, health authorities, and drug companies medical records provide vital evidence of what went wrong. In such litigation each side must disclose to the other any documents that relate to the matters in issue. Traditionally, this step in the litigation timetable, known as discovery, has come after the issue of the writ and the close of the pleadings (the written particulars setting out the issues in the case). In 1970, however, a new concept was introduced into the law? prewrit discovery. This enables anyone contemplating bringing an action for damages for death or personal injury to apply to the court for an order releasing the relevant records before the action has been started. The idea was to help lawyers and medical experts assess better the chances of success before embarking on litigation. The provision has not been popular with health authorities, which regard it as an opportunity for lawyers to engage in fishing expeditions in the hope of dredging up grounds for launching a claim. The court can order the production of documents to the would be litigant himself or to only his legal adviser, or to both legal adviser and medical expert. Only if he has no legal adviser is discovery limited to a medical expert. But to save time and to avoid the cost of a court application solicitors will ask for the records to be released voluntarily. A Department of Health and Social Security (DHSS) circular, HC(82)16, advises authorities to disclose case notes without a court order after consultation with the doctors concerned unless there is some good reason not to do so. Such a reason might relate to the defence against the particular claim or to the grounds for seeking discovery being obviously insubstantial. Health author? ities sometimes resist the request, particularly if it is vaguely worded and not specific about the alleged negligence or the particular docu? ments sought. Often, authorities will offer to disclose records to only a medical expert and not to the solicitor and his client, even though the court would order disclosure to the solicitor. If the request does go to court the rule is that the patient pays both his own and the health authority's costs even if he wins the release of his notes. But an authority that unreasonably refuses to hand over records, forcing a prospective litigant to seek a court order, may be landed with its own costs and in exceptional cases may even have to pay the plaintiffs costs. This happened last year in Hall v Wandsworth Health Authority, where Mr Justice Tudor Price said that there was no reasonable excuse for failure to disclose to the solicitor before the court hearing. He added that the failure to disclose even after the court order showed that the defendants were not approaching the matter with the urgency such litigation demands.