Thursday, August 20, 2015

Health Care Practitioners: Please Don't Keep Notes About Your Patients' Discussions With Their Lawyers

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

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