Swirski

We live in an age where there is a plethora of provincial and federal legislation which recognizes and protects the privacy of personal health information. There are tight restrictions on the purpose for which information can be retained and tighter restrictions placed on the release of the information. The 1992
Supreme Court of Canada decision in McInerney v. MacDonaldi underscores the unique status of personal medical information and the confidentiality that must be maintained.

The patient’s right of confidentiality of his medical records is a relative right. The commencement of an action for damages for personal injury is deemed a waiver of doctor-patient confidentiality as far as the records and the information contained within those records relate to the relevant issues (as defined in the pleadings).

The right of the injured patient must be weighed against the right of the defendant to secure all relevant information in the defence of the action.

The process of the plaintiff ’s counsel obtaining and reviewing health records and redacting entries relating to litigation privilege along with irrelevant entries prior to disclosing them to the defence is a well-recognized one. A Hallidayii order may be sought by one side or the other, but more often than not it is an informal process.

What about the physicians who authored the health care records? The records are crystalized the moment in time they were written and whilst open to interpretation there is a natural limit as to how far the evidence they contain can reasonably extend. The authors of those records may profess to recall more that those records contain – including relevant and irrelevant material.

In Ontario there is greater respect for the preservation of the doctor-patient relationship than would appear to be the case in BC. This respect was clearly influential in the decisions of the court in St. Louis v Feleki 1990iii and Morin v Tesier1994iv. In St. Louis the very real distinction between releasing clinical records (with the appropriate consent form) and an interview with the treating doctor is clearly made. Confidentiality should have prevented the meetings between the physician and defence counsel. In that case the court ordered the defence counsel to disclose the names of the physicians interviewed, together with the information revealed to them.

In Morin Wilkins J considered an application before him to remove defendants’ counsel where they had communicated directly with both the Plaintiff ’s family doctor and treating chiropractor. The records of these treating professionals had already been disclosed (without redactions). It was held that even where these records had been appropriately released, the makers of those records were not released from their duty of confidentiality towards their patient. While the court declined to remove the defendants’ counsel from the case Wilkins J as paragraph 10 stated:

In my view, the profession should be discouraged from direct contact with the health care providers of a plaintiff in litigation where a patient’s health is in issue. The Rules of Civil Procedure, as they apply in the province of Ontario, make adequate provision for the disclosure of information and there is adequate case law to compel the production of clinical notes and records. Conversations directly held with the health care providers, in my view, is taking those production steps and those cases dealing with the production of health records one step too far.

The court in both St. Louis and Morin referred to and declined to follow the Alberta case of Hay v. University of Alberta Hospital 1990v in which Madam Justice Picard simply held that doctor-patient confidentiality was waived by commencement of an action and that the defendant’s counsel was free to have informal discussions with medical physicians who had treated the plaintiff. Hay dealt only with confidentiality (as does Swirski) and pointed out that medical practitioners are not obligated to engage in such informal discussions with counsel.

In BC the pivotal case is Swirski v. Hachey 1995vi in which Mr. Justice Wilkinson examined the complexity of the interwoven and sometimes competing principles that come into play when considering one party contacting the opposing party’s expert; especially were that expert is a physician. The case is an essential read for all personal injury counsel, of whatever persuasion.

In Swirski the plaintiff claimed compensation for injuries sustained in a motor vehicle accident. While the collision itself was not catastrophic in nature the plaintiff claimed that the injuries had a very serious and disabling effect on her life. The plaintiff ’s claim included compensation for a brain injury, which at an early juncture in the proceedings she claimed had caused her to suffer epileptic seizures. As a result of these seizures she consulted four neurologists. During the course of the litigation at least some of these neurologists changed their opinions and indicated that the seizures were not a result of the brain injury sustained in the collision but related to psychiatric factors. Ms. Swirski had also changed her family doctor shortly after the collision. Essentially, all of the family doctor’s records had been disclosed through an informal Halliday procedure. There were no redactions, and on that basis the court held there were no issues which the plaintiff had sought to protect as irrelevant and/or over which litigation privileged was claimed. The defence counsel wished to interview the neurologists and family doctor and sought various declarations permitting the experts to engage directly with defence counsel for this purpose.

There were comprehensive objections raised by Ms. Swirski as to why these interviews with her treating physicians ought not to take place, at least not without the presence of her own counsel.

Regrettably, Wilkinson J. did not confine himself to dealing with the declarations sought in the case before him but saw fit to review case law across Canada (predominantly Alberta and Ontario) and decide what process was to be followed, not just in the case at bar, but in future cases in this province. While this decision offers some degree of structure and certainty, in my view his judgment is over reaching and provides little room for distinguishing factors. Written in this matter it is not a surprise that the Swirski case has stood the test of time.

Below is an updated summary of the various sources of guiding principles for physicians and lawyers relevant to the principles raised in the Swirski decision.

1. The Canadian Medical Association Code of Ethics, under Responsibilities to the Patient, at paragraphs 31, 35 and 36 states:

31. Protect the personal health information of your patients.

…

35. Disclose your patients’ personal health information to third parties only with their consent, or as provided for by law…

36. When acting on behalf of a third party, take reasonable steps to ensure that the patient understands the nature and extent of your responsibility to the third party. vii

2. The physician is subject to The College of Physicians and Surgeons of British Columbia Professional Standards and Guidelines. The guideline Request from Defence Lawyers states, in part, that:

In all matters involving the patient-physician relationship, the maintenance of patient confidentiality and the importance of seeking patient consent for release or disclosure of information are of paramount importance. Physicians are frequently asked by defense lawyers to provide or discuss information regarding the patients who may be involved in a personal injury lawsuit. In such situations, physicians have an ethical and professional obligation to discuss such requests with the patient and/or the patient’s lawyer, and to give due consideration to the patient’s wishes .viii

3. Under the Law Society’s Code of Professional Conduct for BC (effective January 1, 2013) rule 5.3 states:

Subject to the rules on communication with a represented party set out in rules 7.2-4 to 7.2-8, a lawyer may seek information from any potential witness, whether under subpoena or not, but the lawyer must disclose the lawyer’s interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way.

Despite what is clearly a delicate fiduciary relationship between doctor and patient, the court in Swirski relied heavily upon the principle of waiver of privilege of relevant information contained in the medical records upon commencement of litigation. Wilkinson J found no distinction to be made between the clinical records and the author of those clinical records. He found the only reasonable basis of concern for the plaintiff that could result from the treating physician/defence counsel interview to be the inadvertent disclosure of irrelevant information. He clearly had great difficulty envisioning the existence of irrelevant information where the records had been disclosed in an un-redacted form.

As plaintiff counsel I am dismayed at the naivety of this finding, which may have merit in an inquisitorial system of law but has no sure footing in an adversarial system. In my experience of observing (and actively managing where appropriate) such interviews, it is often the primary purpose of defence counsel to obtain information by subtle cross examination regarding any issues which may be used against the plaintiff in pursuing her claim. Without the benefit of a preliminary telephone call with plaintiff ’s counsel, treating physicians are typically blissfully unaware of the tactics of the legal profession. In contrast, those treating professionals engaged in providing independent medical legal reports are usually more cognizant of the adversary nature of the law.

If the physician/patient relationship is to be protected and preserved it should, at the very least, be offered the protection of ensuring both counsel are present during any interview.

However, this is not the law in BC. Wilkinson J. took the opportunity to set out not just the foundation upon which a doctor may be released from his personal responsibility of confidentially of relevant information to speak directly to his patient’s adversary in the case before him, but also set out the procedure for this to occur.

The procedure is reproduced below. The important point is that the onus is firmly upon the plaintiff ’s counsel to object to the proposed interview and seek conditions for such an interview to take place via interlocutory application, if necessary. Time is of the essence in responding to such requests. I am happy to report that in my experience many of the more senior defence counsel (CMPA) are both courteous and professional about such requests. However the procedure is open to abuse.

Wilkinson J. was critical of Ms. Swirski’s lawyer who wrote to his client’s treating physician to remind him of his duty of confidentiality and of his client’s strong wishes for this interview not to take place ix. In my view this remark ignores the duty we have to our client as Plaintiff counsel. If our client does not wish the interview to take place we have a duty to ensure our client’s physician is aware of that wish. We advocate for our clients albeit within the codes of ethics and with respect to our status as officers of the court. There is a clear distinction between informing the physician of his patient’s wishes and inappropriately informing the physician he has no right to speak to defence counsel (which is clearly incorrect in law).

At paragraph 42 Wilkinson J summarized his decision in Swirski:

1. There is no doctor-patient confidentiality attaching to the plaintiff ’s treating doctors concerning information relevant to the claims made herein for purpose of this action.

2. Defendant’s counsel in this case is at liberty to discuss such matters with the plaintiff ’s said physicians in the absence of the plaintiff or her counsel.

3. In the Province, the commencement of an action for damages for injury is a waiver of doctor-patient confidentiality for medical matters relevant to and bearing upon matters raised in the action.

4. In this Province such waiver also constitutes as a matter of law an implied authorization to the physicians for the release of such information for the purposes of litigation.

5. Absent privilege, the only basis for imposing any restriction on such discussion would be the risk of inadvertent release of irrelevant (and thus still confidential information.

6. In future cases (unless and until this decision has been overruled) it is not necessary for defence counsel to apply for approval to discuss the case with the plaintiff ’s physicians, but as a matter of practice in preparing the case for the court, general notice should be given to the plaintiff of an intention to seek informal discussions with named medical treatment givers. The notice should not be given until the limits of the relevant and confidentiality have been set with reference to documents.

7. The onus will then be on the plaintiff to make application to bar or restrict such interviews.

8. My decision in no way compels plaintiffs’ treating doctors to take part in such meetings. They may do so or not as they wish and may impose such conditions as they wish, just as any other witness may do.

9. In this and future cases, where deletions have been made in doctor’s medical records, copies of the amended records should be supplied by defendants’ counsel and the doctors’ attention drawn to information still regarded as confidential. The professional Conduct Handbook ought to be followed.

Practice Tips

Consider writing to each treating physician and clinician early on in your retainer to remind them of their fiduciary relationship and confirm that your client’s wishes are that they are not to speak to opposing counsel without you being present. Any such request for an interview/conversation should be brought to your attention as soon as possible. Including a mobile phone number would be helpful to the busy physician trying to comply with your request.

Speak to each treating physician/clinician early on in the claim to assess what type of witness s/he will make. Are they sympathetic to their patient’s claim or do they harbour ill feelings? If such ill feeling are apparent, find out why, then consider how you can ameliorate the situation at this point, before you are scrambling to do so before a Swirski interview or trial?

Invite the treating physician to invoice you for their time in speaking with you. This sets the correct tone for future requests for time to discuss your client’s care and condition. Their time is precious and you should offer to pay for it. Note: Defence pays for the costs associated with the Swirski interview itself.

If a request is received from DC for a Swirski interview, deal with it immediately. Acquiescence will likely be taken as a sign of consent and potentially of you failing to protect your client’s interests. Consider the following:

1. Advise the client of the request and seek instructions.

2. Have the medical records of the physician been disclosed? If not, the interview is premature.

3. Were any redactions made to the medical records? If so, ensure the physician has a copy of the redacted chart and bring these redactions to their attention.

4. Do you want this interview to happen? If so, under what terms? Can these terms be agreed with DC and the physician?

5. Is a court order necessary to protect your client’s irrelevant (and confidential)
information?

Assuming one wishes the interview to proceed with you present, consider offering to set up the telephone call or meeting. This will ensure you are not left out as a result of some last minute misunderstanding.

Ensure you have had the opportunity to talk to the physician first, alone, before the interview. In my experience physicians are wary of such interviews and they appreciate having the patient’s lawyer give them context to the request for interview. Remind the physician you are not their lawyer but you will not hesitate to step in and object to a question if you feel it is stepping outside the remit of a Swirski interview. It is ultimately for the lawyer to determine what is relevant to the proceedings and therefore what is protected under the implied waiver of confidentiality. The interview is limited to the treatment of the plaintiff-patient and the opinion of the expert based on his knowledge gained during treatment. It is not appropriate, in my view, for additional information to be put to that treating expert to formulate opinions outside of his treating examination. This is not a back-door independent medical-legal opinion.

If, for whatever reason, a Swirksi interview of one of your client’s treating physicians is not in your client’s best interests, you may choose to write to the physician to advise him of your client’s wishes. Be careful not to suggest the physician is not permitted to talk to defence counsel: there is no property in a witness. However, a treating physician’s relationship with his client (especially where treatment is ongoing) is a delicate professional relationship to be fostered, not destroyed. Physicians quite rightly are generally programed to think in these terms. Make use of this tendency, if appropriate to do so.

One ground upon which I have consistently objected to a request for a Swirksi interview is where the treating physician has already provided a comprehensive medical-legal report (MLR) and the request for the Swirski interview comes late in the day, perhaps close to trial. There is little to be gained from such an interview in the face of a comprehensive MLR.

On balance I more often than not actively facilitate Swirski interviews in a controlled manner. To do so encourages settlement (if only at the eleventh hour).

Swirski’s are entrenched in our process of litigation in BC. Expect requests for these interviews; plan for them and embrace them by building good relationships with treating physicians early on.

i McInerney v. MacDonald [1992] 2 SCR 138

ii Halliday v. McCulloch, (1986) 1 BCLR (2d) 194 iii St. Louis v Feleki [1990] 75 D.L.R. (4th) 758
iv Morin v Tessier (unreported) 1994 O.J. No.361

v Hay v University Hospital [1990] CanLII 2619 (AB QB)

vi Swirski v. Hachey [1995] BCJ No 2686

vii https://www.cma.ca/code-of-ethics see PDF download (accessed on February 18, 2014)

viii https://www.cpsbc.ca/for-physicians/standards-guidelines “Request from Defence Lawyers” (accessed on February 18,
2014)

ix Swirski, above