Discovery of Post Accident Medical Records

Discovery is a feature of the litigation process that can be very time consuming.  It involves the disclosure on oath of the existence of certain documentation and the inspection of the documentation disclosed, with the exception of those documents which are privileged.  Despite the delays that it causes, the discovery process is an integral part of the litigation process, particularly in complex personal injuries cases.

A party seeking discovery must specify the categories of documentation being sought and the reasons for which they are required.  Therefore, the relevance and necessity of the request for discovery must be clear.  Requests for voluntary discovery seeking post-accident medical records have frequently been resisted and indeed hotly contested before the court.  The case of Power -v- Tesco Ireland Limited [2016] IEHC 390 was previously thought to prevent post-accident discovery without a supporting opinion from a medical expert.  However, Simons J made it clear that there was no basis for this school of thought in the case of McCorry -v- McCorry [2021] IEHC 104 and determined that post accident discovery may be granted in line with the usual rules of discovery.

The issue of disclosing post-accident medical records recently came before the High Court again in the case of Egan -v- Castlerea Co-Operative Livestock Mart Limited [2023] IEHC 16.  Mr. Justice Twomey held that the post-accident medical records were relevant and necessary for the claim and granted an order for discovery.

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The following points were addressed in this recent judgement:

• The key factor in determining whether the post-accident medical records are discoverable is whether they are relevant and necessary for the fair disposal of the matter. Judge Twomey noted what could be more relevant than the Plaintiff’s medical records of those injuries from after the accident.
• The extent to which the accident injuries and post-accident injuries (if any) overlap, and the extent to which they may assist the defendant in resisting a claim for damages, can only be determined when those post-accident medical records are considered by a Defendant’s legal team in light of the alleged accident injuries.
• Judge Twomey acknowledged the significant breach of privacy involved in disclosing personal medical records. However, he outlined that it was clear from the case of McGrory -v- ESB [2003] 3 I.R. 407 that a Plaintiff who decides to seek damages from a Defendant for personal injuries waives his right to privacy in relation to his medical condition.
• The disclosure of post-accident medical records is not only relevant but invariably crucial in every personal injuries claim.
• The availability of a medical report dealing with the Plaintiff’s injuries will not make the discovery of post-accident medical records unnecessary. This is because an opportunity to cross examine a medical expert will most likely not arise due to most personal injury cases being resolved before a court hearing.
• If a Defendant is denied all of a Plaintiff’s medical records by being restricted to the consultant’s medical report that the Plaintiff is relying upon for his claim, the Defendant is at risk of being denied relevant medical information regarding the claim. This is more likely to occur in cases where Plaintiffs have been referred to a consultant by his/her solicitor.
• As a general rule, pre-accident discovery is confined to a three year period to ensure proportionality and avoid oppression in the discovery process. Given that post accident medical records are more relevant to the litigation, the same general time limit will apply.  However, the circumstances of each case may result in a shorter or longer period than three years.

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This judgement is a timely reminder to legal professionals to prepare pleadings with sufficient particularity so that requests for voluntary discovery by either party in the proceedings can demonstrate the relevance of the request to the case pleaded.

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