How will my health records be used in a trial?

Doctor gesticulates over printed health records

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 Doctor

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.


Your Testimony

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.


Written by

Brendan Sullivan was called to the bar in Ontario in 2016 and practices with Sullivan Injury Law, assisting clients with their serious legal problems in the areas of personal injury, civil litigation, and wills.

As a lawyer, Brendan spent the first five years of his career in Hamilton assisting with preparing and running personal injury jury trials. Eventually he ran one of the first Zoom personal injury trials in Ontario in May 2021. Brendan is a trial lawyer and a strong advocate for his clients.

Brendan is a member of the Ontario Trial Lawyers Association, the Hamilton Law Association and regularly appears before the Superior Court of Ontario.