Are your medical records private?
26 Oct 2020
- Personal Injury
People sometimes say things to their doctor or other treatment providers, thinking it will always remain private.
In reality, in some legal situations, medical records are accessible by insurance companies or their lawyers, even if those records include personal and sensitive information. Of even further concern is that, quite often, our experience is that such medical records are inaccurate or incomplete, not through any deliberate action, but simply because the author of the records misunderstood what was said, or was rushed and made a mistake.
In personal injury matters in the ACT, the applicable laws make full disclosure of any relevant documents, including medical records, mandatory. Further, lawyers for insurance companies involved in such claims, can issue a notice or subpoena requiring production of the records by the treatment provider.
We have clients who have inadvertently given an inaccurate history or described the circumstances of an accident to a doctor, without taking proper care to ensure its accuracy. Such errors can be accessible to others, as set out above, and can be used to undermine the credit of the client.
Another issue that can arise is that sometimes clients receive written advice from their lawyers about a particular matter. Normally written communications between lawyers and their clients are protected by what is called legal professional privilege. Our experience has been that some clients choose to hand such letters of advice to their doctor or treatment provider. What they do not understand is that, by doing that, the client effectively removes the privilege associated with that advice and it can then be available to an insurance company or their lawyers.
The lesson to take away is to always assume that a medical or similar record will be accessible to others and to make sure that all information is as accurate as possible or, if a particular matter is sensitive and personal, it may be appropriate to ask that such a personal or sensitive matter not be recorded in the treatment notes.