High Court confirms McGrory -v- ESB on duty to disclose medical records at early stage of Personal Injury actions

Van Der Zaan v The National Maternity Hospital [2020] IEHC 83 (24 February 2020)

This recent decision of Barrett J in the High Court reaffirms the position that in a claim where a plaintiff is seeking damages for personal injuries, a defendant ought to have access to the relevant material and records related to the plaintiff which would be available later in the proceedings in any case.

Facts:

The dispute centred around the fact that the defendant had lost the original chart related to the plaintiff’s surgery (salpingectomy due to an ectopic pregnancy) which took place at the Defendant hospital. At an early stage during the pleadings, the defendant’s solicitors informed the plaintiff’s solicitors of this fact and requested a copy of the chart as it was needed to obtain expert reports. The plaintiff’s solicitors refused to provide the medical records on the basis that they were not yet at the formal stage of discovery (pre Defence) and said they would oblige once a Defence was delivered.

Finding:

Barrett J reiterated the Supreme Court’s decision in McGrory v ESB [2003] IESC 45. The facts in McGrory concerned a plaintiff who would not allow the defendant’s doctors to consult with the plaintiff’s treating doctors in the process of drawing up their reports. The plaintiff also refused to attend a medical examination, at which both his and the defendant’s doctors would be present. The Supreme Court held that it was not necessary that the pleadings be closed before the defendant in a personal injury action is entitled to the following:

1. to have the plaintiff medically examined;
2. to have access to the plaintiff’s medical records; and
3. to interview the plaintiff’s treating doctors

In Van Der Zaan, Barrett J noted the importance of these requirements, in medical negligence cases in particular, as a means of enabling the defendants to form a view as to the amount of damages likely to be recovered, as well as calculating any lodgment which may be made to meet the claim. Moreover, Barrett J was of the view that making ‘relevant’ material available to the defendant at the early stages of a claim could only facilitate early settlement between the parties.

Thus, an Order was granted that (1) the plaintiff provide the defendant with a copy of the mislaid medical chart so that proceedings could progress, and (2) that a Defence be delivered within 12 weeks of receipt of the chart.

Comment:

The judgment of Barrett J is a welcome reminder of the duty on plaintiffs to disclose relevant medical records to defendants at an early stage of proceedings in personal injury actions in order that defendants can prepare their Defence of a claim with the necessary benefit of all relevant and available evidence.