Personal injury litigation begins with the collection and sharing of all your health records with the lawyers and parties involved in your action. This article will explain some of the ways your health records will be used by the lawyers at trial.
Clinical Notes and Records
During the presentation of your case, your lawyer may submit all clinical notes and records of a doctor as evidence. By doing this, the lawyer is vouching for the doctor’s work as ‘business records’ according to section 35 of the Evidence Act R.S.O. 1990, c. E23. By using the records in this way, the lawyer is making them available to the judge or jury to prove the facts contained – such as the medications you were prescribed or the times you visited.
Your lawyer may also call your doctor as a witness, and your health records will be explained for the judge or jury in detail. The doctor may be asked to explain abbreviations, or to help the lawyers read their handwriting. If the records are completely illegible, a doctor may sometimes be asked to transcribe their notes in accordance with O. Reg. 114/94 General enacted under the Medicine Act 1991 S.O. 1991, c. 30, s. 18(3). This Regulation requires members of the College of Physicians and Surgeons to keep legible records.
When you are called to testify, your health records may contradict some of the things you say. If this is the case, during cross examination, the Defendant’s lawyer will put a copy of the records in front of you and show the contradiction. This is a common law rule of evidence from the case Browne v. Dunn (1893) 6 R. 67, H.L. This rule allows you to review the evidence, and explain any contradictions.
Your health records will demonstrate the same complaints over a long period of time. However, by the rule against hearsay – your lawyer will not be able to use this consistency to support your credibility.
On the other hand, the rule against hearsay does not prevent the Defendant lawyers from using inconsistencies during cross examination. Therefore, inconsistencies in the health records can be used against you, but consistencies cannot be used to show that your complaints are more likely to be true.