The Disclosure of Post-accident Medical Records
We look at the interesting pre-trial judgement of Egan v. Castlerea Co-Operative Livestock Mart Limited  IEHC (https://bit.ly/3ZUN7KR), which considers the question of disclosing post-accident medical records.
One of the reasons the Plaintiff argued that it was not necessary for him to disclose his post-accident medical records was because the Defendant could, at the trial of the action, cross examine the Plaintiff’s medical expert on the contents of the expert report. The Court found that this was not a “particularly compelling reason…because 97% of personal injury cases settle” and where the reality is that “in the vast majority of cases, there will be no cross-examination of a medical expert because reliance is placed on documents, and not oral evidence and cross-examination, to reach a resolution of a claim”
While the claim in question was not a clinical negligence claim and the procedural stage of the claim is unclear, i.e. whether or not a defence had been delivered, it is important to note that the Court held that post-accident discovery was appropriate because “medical records will provide the best evidence regarding the medical condition of the plaintiff after the accident and they will also deal with the key issue in many personal injury cases, i.e. which of the plaintiff’s complaints are related to the accident and which relate to other medical issues, whether pre-accident or post-accident.”
Regardless of the procedural stage, this decision is a positive development for defence practitioners in the management of personal injury and clinical negligence proceedings. Meanwhile, pre-action protocols, if in place, would ensure that earlier disclosure of patient records takes place facilitating more informed consideration of any potential claim or defence. There are continued calls for pre-action protocols in clinical negligence claims in this jurisdiction however, they still remain to be implemented. We refer to the Expert Group Report to Review the Law of Torts and the Current Systems for the Management of Clinical Negligence Claims dated 17th January 2020 in this regard.
If you would like any further information or advice, please contact Stephanie Kidney from the Healthcare team.
*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.