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Applying for unredacted medical records

If ICBC applies to the court for unredacted medical records, what will satisfy the court that the redacted entries are relevant and should be disclosed? Will a desire to see all entries because they “may be relevant” suffice? How can the plaintiff’s lawyer satisfy the court that the redactions were proper after review of the legal team for relevance?  The case below demonstrates what lawyers on both sides should avoid in such applications.   

In yesterday’s decision of Sharda v. Moran (2016 BCSC 538), the plaintiff was injured in a 2009 collision. The plaintiff’s lawyer had done the usual: gone through the plaintiff’s medical history and redacted irrelevant portions. ICBC’s lawyer applied to the court for disclosure of various un-redacted or unedited medical records from two years pre-collision.

Both parties provided affidavit material (witness testimony in writing) and gave verbal arguments. Both sides materials and arguments were considerably lacking – such that the master was unable to determine the reason that the un-redacted records were required or relevant. The master was also unable to determine from the plaintiff’s materials whether the legal team had actually reviewed the documents for relevance. In dismissing the application due to its fatal flaws (and noting the defendant’s right to reapply on the basis of proper and better evidence), Master Caldwall made the following remarks about ICBC’s application:

[7]             Counsel for the defendant in his submissions acknowledged that he could point me to no evidence in support of the relevance of his request for pre-MVA medical disclosure. When asked specifically about such evidentiary basis for the request he simply replied that the defence wants to see the documents because they may be relevant. He further made reference to the fact that his friend had brought all of the documents in a binder and that I could review them for relevance.

[8]             Hoping to find support in the affidavit material, I turned to it. What I found was an affidavit of a paralegal which did little other than attach a series of correspondence and various expert reports. The body of the affidavit contains 24 paragraphs, 17 of which simply assert the attachment of an exhibit with little if any reference to its import to the application. The exhibits run to a further 65 pages of unfocussed material. Paragraph 14 of the affidavit does indicate that the plaintiff attended an Independent Medical Examination with Dr. Grypma and para. 15 tells me that Dr. Grypma “states that he needs to see unredacted pre-accident medical records”. Reference to that report shows that he said:

The pre-motor vehicle accident records were redacted. The diagnostic codes for the MSP records were also redacted. I need to see the pre-accident medical records.

[9]             No reference is made to MSP records nor is there any indication as to why the unredacted records are needed — apparently even if they are completely irrelevant and properly redacted. Such bare assertion cannot operate as a skeleton key to open all doors to all medical disclosure, relevant or not, simply because it is recited by an expert with no further explanation.

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