Wise Law Blog: August 2015

Today’s tip is for health care practitioners whose patients are involved in litigation.

We recognize that it might be natural, and even good practice, for medical practitioners to ask their patients how their lawsuits are going.

Particularly for those practitioners who provide counselling, these discussions may be essential to your work.

Lawsuits can weigh heavily upon the psyches of those who find themselves involved in the legal system. The litigation itself can be very foreign and stressful. The future may in a very real way hinge on the outcome of their lawsuits. There may even be stressful issues between your patients and their lawyers. All of these issues can benefit from being talked through with a qualified health care practitioner.

It can be highly problematic, however, when practitioners include details of those discussions in their chart notes.

No I’m not talking about broad information about the patient’s litigation, here. I’m talking about specific nitty-gritty details of discussions with lawyers that are disclosed by your patients that shouldn’t ever find their way into a medical chart.

By that, I mean details about offers to settle, the patient’s financial expectations and the lawyer’s stated opinions about the value of a claim. Details about tactics and strategies. Information that no patient would reasonably want an adverse party to know.

Practitioners should be aware their their entire charts may at some point be producible in their patients’ litigation. If their chart notes include details of patient’ reports as to confidential discussions with their lawyers, those too may have to be disclosed. Solicitor client privilege could thereby be breached, and your patient’s legal interests could be compromised or prejudiced.

In keeping chart notes then, practitioners should exercise caution and prudence as to the details to be included. If a practitioner intends to include precise details in medical records, they should take care to ensure the patient is aware that such notes will be taken, and that informed consent is obtained.

But most importantly, practitioners should exercise caution and discretion.

Don’t unwittingly cause a harmful breach of solicitor-client privilege by charting details about litigation (and patients’ discussions with their lawyers) that have no genuine medical relevance.

(Cross-posted at Slaw Tips)

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Punitive Damages in Ontario Employment Law - Pate Estate v. Galway-Cavendish and Harvey (Township)

American courtroom dramas and John Grisham novels tend to skew Canadian views on what punitive damages are and how they are awarded.

The Ontario Court of Appeal’s November 2013 decision in

Pate Estate v. Galway-Cavendish and Harvey (Township) provides some clarity on the awarding of punitive damages in the employment law context.
Read More...

Money Mart Ordered to Pay $30K for Harassment

The Ontario Human Rights Tribunal has ordered National Money Mart Company to pay $30,000 in compensation to a former, one-year employee of the company who had been subjected to ongoing, serious sexual harassment by her workplace supervisor.