Are Medical Reports From a Past Personal Injury Matter Privileged?
In the recent Alberta Court of King’s Bench decision, Fedotkin v Obodzinski, 2023 ABKB 632, (Fedotkin), a Plaintiff who was injured in a motor vehicle accident refused undertakings to disclose medical reports prepared in relation to a previous action for personal injury damages that had resolved. The Court rejected the Plaintiff’s argument that the documents were privileged and ordered the disclosure of the medical reports.
The action involved injuries sustained by the Plaintiff in a 2019 motor vehicle accident. She had previously been injured in a motor vehicle accident in 2015. The following undertakings were in dispute: (1) to provide all independent medical examinations or other medical/legal reports on the Plaintiff related to the 2015 accident; and (2) to provide copies of all functional capacity evaluations and economic assessments on the Plaintiff related to the 2015 accident. The Plaintiff argued that the materials were covered either by litigation privilege or by solicitor-client privilege. Additionally, the Plaintiff argued that a decision requiring production of previous medical reports would significantly alter the practice of personal injury law.
The Court agreed that the medical reports were relevant and material, noting that the relationship between the injuries and medical recovery in a prior accident and a present accident is not novel but rather, is often raised. In this case, the Court was satisfied that there was overlap between the injuries claimed arising from the former accident and those in the present accident.
The Court found that any litigation privilege which may have attached to the reports ended with the litigation. Specifically, the reports were not prepared for the dominant purpose of the current action and any litigation privilege ended with the resolution of the first action. The Court found that solicitor-client privilege did not apply to the medical reports either because this protection is reserved for communications between the lawyer and their client, which are made while seeking or giving legal advice, not third-party documents.
The Court also rejected the Plaintiff’s final argument, namely that the production of the reports would significantly change the practice of personal injury law. Rather, relevant and non-privileged material is always producible. The Court further noted that it is routine practice to sort out the relationship between current injuries and those from a previous accident, especially where the accidents occurred relatively close together.
Finally, the Court emphasized that the burden of establishing that materials are privileged rests with the party claiming privilege. Here, the Plaintiff made no efforts to locate or review the materials for potential redactions or privilege claims and only requested the opportunity to do so if production was ordered. The Court determined that the time to succeed on privilege claims would have been at the application and that this opportunity had passed.
Medical reports from previous personal injury lawsuits are producible in subsequent actions provided they are relevant and material, which they often will be when assessing the relationship between overlapping injuries. Provided that the previous action is resolved, litigation privilege will not protect medical reports from disclosure in a subsequent personal injury lawsuit. Further, third-party documents such as medical reports are not protected by solicitor-client privilege, which applies to legal advice given or sought between a lawyer and client. Ultimately, Fedotkin defines the limits of privilege over medical reports and, in turn, widens the scope of disclosure in personal injury law.