The Use of Clinical Records in ICBC Injury Trials
ICBC Injury Claims can be record intensive. Every time you see your doctor, chiropractor, massage therapist, or other medical specialist they keep clinical records. These records often take down your subjective complaints, the physician’s objective observations, the physician’s assessment of the problem and the plan or treatment prescribed. These records, if addressing accident related injuries, are relevant and usually are produced to the Plaintiff and Defence lawyer in the course of litigation.
So what use can be made of these records at trial? Can a Plaintiff corroborate in court testimony with these previously recorded out of court statements? Reasons for judgement were released today thoroughly canvassing this area of the law.
In today’s case (Smith v. Wirachowsky) the Plaintiff was involved in a 2007 car crash in Nanaimo, BC. It was a rear-end crash and the Plaintiff suffered various “mild to moderate” soft tissue injuries which were largely but not entirely resolved by the time of trial. It was expected that the injuries would eventually resolve and damages of $35,978.66 were awarded which included an award of $30,000 for non-pecuniary loss (pain and suffering).
During the course of the trial the Plaintiff attempted to introduce clinical records from the Plaintiff’s physiotherapist which recorded the Plaintiff’s complaints of pain. Mr. Justice Halfyard ruled that the records were not admissible for that purpose and summarized the law relating to the use of clinical records at trial as follows:
 It was common ground that the clinical records qualified as “business records” within s. 42 of the Evidence Act. It was also agreed that the plaintiff’s statements in the clinical records, if admitted, could not be used to prove the truth of their contents or to bolster the credibility of the plaintiff’s trial testimony. …
 In my opinion, the authorities and the rules of evidence establish that the fact that a plaintiff made a particular statement to a doctor or therapist can be relevant to the following issues (where such issues exist):
a) In cross examination of the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or a damaging admission);
b) In re-examination of the plaintiff, to rebut the suggestion (by defence counsel) of recent fabrication or failure to complain;
c) In cross examination of a doctor who examined or treated the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or damaging admission), where the plaintiff denied or did not admit making the statement;
d) Where a doctor’s or therapist’s particular recommendation for the plaintiff’s treatment is challenged, and the plaintiff’s statement is relevant to explain why that treatment was prescribed or administered; and
e) In cross examination of a medical expert witness called by either party, where it is alleged that the expert relied on a particular statement made by the plaintiff to him or her; or where it is alleged that the expert disregarded or failed to consider a particular statement made by the plaintiff.
 It should be noted that there are at least two ways in which a plaintiff’s statements recorded in clinical records may become admissible as proof of their truth. The first way is where the plaintiff admits making a particular statement to a doctor or therapist which appears to be inconsistent with the plaintiff’s trial testimony, but then adopts the previous statement as being true (and rejects the conflicting trial testimony). In that situation, the previous statement can be used as proof of its truth, if the trier of fact accepts the plaintiff’s testimony on this point. More frequently, the plaintiff will reject the previous statement as being false and give an explanation for making it (such as mistake). In that case, as is well known, the previous statement, if inconsistent, can only be used to assess the credibility of the plaintiff’s trial testimony.
 The second way is where the plaintiff admits making (or is shown to have made) a previous statement recorded in the clinical records which if true, would constitute an admission against interest. In that situation, the plaintiff’s previous statement can be used by the trier of fact as proof of its truth (even if the plaintiff denies that his or her previous admission was true).
 In the present case, the statements of the plaintiff to her physicians and therapists were not relevant to any issue in the trial that could have made them admissible at the instance of the plaintiff. A potential exception could occur in a case where a plaintiff had told her doctor that she had recovered from an injury, but on a subsequent date or dates attended a doctor again and complained that an injury continued to generate symptoms of pain and disability. In that situation, the plaintiff’s subsequent complaints to her doctor would be admissible in re-examination, to rebut the suggestion that the plaintiff had made no further complaints of pain after a certain point in time. But of course the complaints made subsequently by the plaintiff could not be admitted to prove their truth. It was not shown that this situation occurred here.