Understanding medical information consent in personal injury claims
In a recent case heard by the Ontario High Court, the court stated that the plaintiff had the right to study the form with a lawyer before signing the medical consent release form.(See Jajjo and Danno v. Singh, 2021 ONSC 4269)
The defendant initially filed a motion to recover the costs incurred by the defendant in canceling the independent medical evaluation with the doctor of his choice. The plaintiffs appeared at the evaluation site without a lawyer and were asked to sign the medical consent form. The plaintiffs refused to sign without counsel. Therefore, the therapist refused to comment because they did not get the plaintiff’s consent. The operation was cancelled, but the defendant still had to pay the doctor for the medical appointment.
The court rejected the defendant’s consent to request the plaintiff to pay the medical evaluation fee. The court held that it was reasonable for the doctor to require the plaintiff to complete the written medical consent before the evaluation, but the plaintiff lacked time to negotiate with the lawyer before signing anything, so it should not bear the cost of cancelling the evaluation. The plaintiff did not inform them in advance to sign the consent form.
The plaintiffs did not object to the assessment itself. However, it is impossible to negotiate with the lawyer before signing the necessary documents. Therefore, the court ordered the defendant to bear the costs necessary to cancel the assessment.
What is the public release of medical information?
Medical information disclosure refers to the written document that the plaintiff(or patient) is authorized to ask the medical record owner(usually the patient’s hospital or treatment doctor) to disclose the medical record. When the plaintiff files a personal injury case, they collect their own relevant medical records or obtain medical records on their behalf with the written consent of the lawyer.
However, in some cases, the lawyer may require the plaintiff to sign a declaration of public medical information or medical records. If the plaintiff is represented by a lawyer, the lawyer shall make a request to the plaintiff’s lawyer so as to have an opportunity to discuss before they sign.
Why do personal injury cases require independent medical evaluation?
If the personal injury case enters the discovery stage, the plaintiff and the defendant will exchange evidence, facts and information. The plaintiff who has caused physical injury or disability due to the defendant’s negligence can claim financial compensation for the pecuniary or non pecuniary damage suffered or suffered in the future due to the newly developed medical situation.
The lawyer may object to the amount of damages claimed by the plaintiff. To this end, they may require invoices, medical reports and other forms of necessary evidence to prove the plaintiff’s claim. The lawyer can also submit an independent medical evaluation to the plaintiff to determine whether there is any other willingness to confirm the preliminary diagnosis. In addition, they can ask the plaintiff to sign a general consent form to disclose the previous medical records.
In Jajjo and Danno’s case against Singh, the court pointed out that the general medical release may be too heavy and extensive. At least plaintiffs should be able to consult their lawyers before signing these broad general consents. Otherwise, the defendant may obtain permission to retake the plaintiff’s entire military strength. This is beyond the scope of the case and violates the reasonable expectation of the plaintiff’s right to privacy.
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