Understanding Consent for Medical Information in Personal Injury Claims
In a recent case before the Ontario Superior Court of Justice, the Court stated that plaintiffs are entitled to review a medical consent release form with their lawyer prior to signing it (see: Jajjo and Danno v. Singh, 2021 ONSC 4269).
The defendant initially filed a motion to recover costs incurred for cancelling an independent medical evaluation with a physician chosen by the defendant themself. The plaintiffs appeared at the evaluation site without their lawyer, whereupon they were asked to sign a medical consent form. The plaintiffs refused to do so without guidance from their lawyer. Consequently, the treating physician refused to perform the evaluation, since they had not obtained the plaintiffs’ consent. The procedure was cancelled, but the defendant still had to pay fees to the physician for the medical appointment.
The Court dismissed the defendant’s motion that the plaintiffs should be required to pay the cost of the medical evaluation. According to the Court, while it was reasonable for the physician to request that the plaintiffs complete a written medical consent release prior to conducting an evaluation, the plaintiffs should not bear the costs of the cancelled evaluation since they were not given adequate time to consult with their lawyer before signing anything. The plaintiffs were not notified in advance that they would be required to sign a consent form.
The plaintiffs did not object to the evaluation itself, only to their inability to confer with counsel before signing a required document. For that reason, the Court ordered that the defendant is responsible for paying the requisite fees for the cancelled evaluation.
What is a Release to Disclose Medical Information?
A release to disclose medical information is a written document indicating that a plaintiff (or patient) has authorized the holder of their medical records (usually the patient’s hospital or treating physician) to release their medical records to the party that has requested them. When a plaintiff files a personal injury case, they will either collect their own pertinent medical records or grant their lawyer written consent to obtain medical records on their behalf.
However, in some cases, the defence may also ask the plaintiff to sign a release to disclose medical information or medical records. If the plaintiff is represented by a lawyer, the defence should present the request to the plaintiff’s lawyer so they have a chance to discuss it before signing.
Why are Independent Medical Evaluations Necessary in Personal Injury Cases?
If a personal injury case moves to the discovery phase, the plaintiffs and defendants will exchange evidence, facts, and information. Plaintiffs who have sustained physical injuries or disabilities as a result of the defendant’s negligence may pursue financial compensation for pecuniary or non-pecuniary damages they have sustained or will sustain in the future because of their newly developed medical condition.
The defence may dispute the number of damages claimed by the plaintiff. To do so, they may request invoices, medical reports, and other forms of necessary evidence substantiating the plaintiff’s claim. The defence can also request the plaintiff to submit to an independent medical evaluation to see if another physician will corroborate their initial diagnosis. Additionally, they may ask the plaintiff to sign a general consent form to release any of their previous medical records.
In the case of Jajjo and Danno v. Singh, the Court notes that a general medical release may be unduly burdensome and too broad. At the very least, the plaintiff should be able to consult with their lawyer before signing such a broad, general consent form. Otherwise, the defendant may be granted consent to retrieve a plaintiff’s entire medical history, beyond the scope of the case and in violation of the plaintiff’s reasonable expectation of privacy.
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