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Plaintiff Has No Obligation To Acquire and Disclose Clinical Records Defence Want

Earlier this year the BC Government passed a law (whose legality is being challenged) arbitrarily capping disbursements at 6% in “vehicle injury proceedings”.  Artificially capping disbursements requires plaintiffs to use great caution in what disbursements they incur in advancing their claims.  This in turn often means limited record production.   Defence frequently are now displeased wishing for more records to scrutinize and are met with resistance due to this rule.

With this context in mind the BC Supreme Court recently reminded litigants that there is no obligation for plaintiff’s to obtain records on defence counsel’s wish list.  If the records are relevant, obtained and in the possession or control of the plaintiff they must be listed and disclosed accordingly.  However, if they are true third party records, such as hospital charts, plaintiffs have no obligation to obtain these and defence must bring proper application with notice to the record holders for production (and most importantly be prepared to shoulder the disbursements themselves).

In the recent case (Choy v. Stimpson) the Defendants wished for clinical records documenting an injury the plaintiff sustained which could be relevant to the lawsuit in question.  They asked the plaintiff to disclose these records even though the plaintiff did not have them in his possession.  In dismissing the application and reminding counsel that the Plaintiff has no obligation to obtain records the defence wishes for the Court provided the following reasons:

[6]             The application for production of these clinical records follows from a request made at an examination for discovery defence counsel conducted of the plaintiff on February 25, 2021. During that examination, the plaintiff indicated that he was admitted to Burnaby General Hospital on June 19, 2014, because of injuries he sustained while playing hockey. The plaintiff also indicated he received some chiropractic and physiotherapy treatments in early 2016, prior to the September 24, 2016 accident. Defence counsel asked the plaintiff to produce the clinical records relating to his attendance at Burnaby General Hospital and the other records sought in the notice of application. Those records have not been provided to date.

[7]             The order sought is not appropriate. As indicated in Seller v. Grizzle, [1994] B.C.J. No. 1565, at para. 17, records created and in the possession of a doctor or a hospital are not within a patient/plaintiff’s power or control. They do not have to be acquired by the plaintiff and do not have to be disclosed on the list of documents the plaintiff must provide pursuant to Rule 7-1(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”). Often the parties agree that records should be obtained from someone who is not a party to the lawsuit and the plaintiff volunteers to get the records pursuant to an authorization. When plaintiffs obtain those records, they have to disclose them on a list of documents, as long as they fit within the relevancy requirements in Rule 7-1. If the plaintiff elects to not obtain such records, defendants have a remedy; they can apply under Rule 7-1(18) for production directly from the doctor or hospital holding the records.

[8]             The defendants’ application seeking an order that would require the plaintiff to obtain, and then produce to the defendants, copies of clinical records, a Medical Services Plan printout and a PharmaNet printout relating to treatments and medications the plaintiff may have received during the period from June 19, 2014 to September 24, 2016 must be, and is, dismissed.