The Court of Appeal has upheld the dismissal of a bizarre medical-legal malpractice case. The appellant alleged that he was mistreated and assaulted by hospital staff. His claim included defamation, malicious prosecution, battery and physical assault, and intentional infliction of harm. (Universe v. Fraser Health Authority, 2019 BCCA 234)
The lawyers representing the doctors were sued for breach of privacy. This was because the lawyers listing the claimants medical records from the hospital without his consent.
The court dismissed the claim confirming that confidentiality continues to be protected by virtue of litigation’s implied undertaking. The medical records cannot be used for any purpose other than the litigation.
Balancing the right to privacy and the public’s right the seek the truth the Court of Appeal quoted from Duncan v. Lessing, 2018 BCCA 9:
“ Parties engaged in civil litigation will inevitably encounter intrusions into their personal privacy. They will be required to disclose information that they may regard as confidential, including documents not otherwise available to the adverse party. They will be required to submit to an oral discovery process that may lead to disclosure of otherwise private information. The law provides a measure of protection for privacy interests caught up in the litigation process, but the public interest in arriving at the truth generally outweighs a party’s privacy interest.
Steps to Take After a Medical Malpractice
I believe the appellant is right!