Defence Contact with Plaintiff’s Treating Physician

It has come to our attention that some recipients of our newsletter have been receiving, in the last several messages, the text of an earlier update. We apologize for this. Below is the text that should have accompanied today’s update.

We are attaching a copy of an interesting decision by Mr. Justice Ferguson of the Ontario Superior Court in Burgess v. Wu. Although the decision, handed down on Monday of this week, arises out of a medical malpractice action, it addresses some issues that are important in any litigation in which the health of the plaintiff is an issue.

In this case, the plaintiffs were the daughter and widow respectively of Ernest Burgess. Mr Burgess committed suicide and the plaintiffs sued his family physician, Dr. Wu, claiming that the physician’s negligence had caused the suicide. Specifically, it was alleged that Dr. Wu had been negligent in prescribing Seconal to Mr. Burgess, which medication was taken in overdose, leading to Burgess’ death.

In the course of the litigation, counsel for the defendant doctor contacted a psychiatrist by the name of Dr. Angus MacDonald. While Mr. Burgess was alive, Dr. MacDonald had been involved in his treatment, in the capacity of consultant. The defence lawyers wanted to obtain a report from Dr. MacDonald, for use in the litigation. They asked Dr. MacDonald to comment on the likelihood that Mr. Burgess “would have committed suicide (regardless of the prescription of Seconal), his prognosis otherwise, and the probability of him returning to a functioning lifestyle”. Dr. MacDonald agreed to assist them.

When he reviewed the records, Dr. MacDonald realized that he had previously been involved in the treatment of Mr. Burgess, although he had no present memory of this. (There was apparently no consultation report in the records of the hospital where Dr. MacDonald had seen Mr. Burgess, so neither Dr. MacDonald nor anyone else had a written report from him, documenting his findings at the time that he saw Mr. Burgess.)

After reviewing Mr. Burgess’ extensive health records, Dr. MacDonald provided the defence with a lengthy and comprehensive report that was quite favourable to its case. As Ferguson J. noted, “It would be an understatement to characterize his report as adversarial and adverse to the plaintiffs’ position. I note that it goes far beyond the issues on which he was originally retained….It is adversarial in approach, sarcastic and extravagant in expression, and contains what I would characterize as coaching tips on medical and advocacy issues intended to undermine the plaintiffs’ case. Its content is both disrespectful and destructive of the sanctity of the physician-patient relationship. To make matters worse, he was to be paid by the defence to write it.”

The report was served on counsel for the plaintiff, who then moved for an order preventing Dr. MacDonald from testifying as an expert for the defence. (The motion also sought to have the defence firm, Lerners, removed as solicitors of record on the ground of its misconduct.)

Against this backdrop, Justice Ferguson embarked upon a wide-ranging discussion of doctor-patient confidentiality and its relationship to the litigation process. Ultimately, he granted the motion, preventing the defence from using Dr. MacDonald as an expert. (The motion to remove Lerners was dismissed.)

Ferguson J. drew a number of conclusions about the doctor-patient relationship that are of interest. These are summarized below.

  1. The protocol in the field of litigation is that counsel are not permitted to contact any physician to ask about matters relating to a patient of that physician.
  2. There is an important distinction between contact at trial and contact before trial. Generally speaking, if a physician testifies at trial, he or she must answer all relevant questions, whether or not the patient consents.
  3. Older caselaw, suggesting that once a patient starts a lawsuit relating to his or her health, there is a deemed waiver of any privilege or confidentiality relating to his or her health history, is no longer good law.
  4. There is a distinction between “privilege” and “confidentiality”. Communications between a doctor and patient will usually not be considered “privileged”, in that the law does not make them inadmissible in court. But they may still be “confidential”. Recent jurisprudence from the Supreme Court of Canada makes it clear that a patient does not waive confidentiality by commencing litigation that raises issues concerning his or her health.
  5. Access to confidential medical information before trial can be obtained only through ‘judicial supervision’.
  6. A plaintiff’s health care professionals have a duty to refuse to disclose information about their patient unless required to do so by law.
  7. Unless the patient consents, representatives of a party in litigation may not have any communication at all with the patient’s physician concerning the patient.
  8. Even where access is permitted, the person under a duty of confidentiality cannot be asked for opinions beyond those formed during treatment of the patient unless this is specifically consented to or ordered.
  9. It is improper for a treating physician to act as an expert for a party adverse to his or her patient.
  10. Older cases that held that experts who have received confidential information from one party can still act as experts for opposing parties so long as they do not use the confidential information, are no longer the law. “Chinese walls can prevent communication within an office but not within a person’s brain.”
  11. There is no distinction to be drawn, in the present context, between a true “treating physician” and someone who becomes involved as a consultant in the patient’s care. The duties of confidentiality and fiduciary duty are the same in both cases.
  12. The duty of confidentiality does not die with the patient. It dies with the physician.
    Even though, in this case, all records had been produced and plaintiffs’ counsel had consented to the defence obtaining information from Dr. MacDonald, such that there was no longer any “confidentiality” to be preserved, by acting as an expert for the defence Dr. MacDonald would still be breaching his other duties of avoiding a conflict and of acting in utmost good faith and loyalty.

It is not uncommon for defence counsel, in personal injury actions, to ask for and receive the permission of plaintiff’s counsel, to contact treating physicians. This decision suggests that regardless of the information thereby obtained, it is impermissible for the defence to enlist the physican as its own expert in the litigation. On the other hand, there would be nothing preventing the defence from calling the physician as a witness, to testify to what Ferguson J. referred to as “treatment opinions”. What cannot be done is to ask the physician about “litigation opinions”, that is, opinions “formed for the purpose of assisting the court at trial and not for the purpose of treatment”.

We hope that this summary is of interest to you.

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