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January 2021

Who Pays to Produce the Medical Records?

Case Study: Trumble v Soomal

Eric Boate
Eric W.D. Boate,

by Eric W.D. Boate

In Trumble v Soomal, 2020 ONSC 8097, Justice Sloan held in personal injury cases routine and reasonable medical records are producible at the expense of the plaintiff.

The Decision

Justice Sloan considered whether in a personal injury case the plaintiff or the defendant is obligated to pay for medical records.

In her Affidavit of Documents, the plaintiff produced only the medical records in which she intended to rely on.

The defendant requested normal documentation for a typical personal injury matter, namely the medical records of the plaintiff’s doctors, treatment providers, hospital records, and a copy of a decoded OHIP summary from three years prior to the accident to present. They also requested a copy of the plaintiff’s accident benefits file.

Justice Sloan prefaced his decision with an acknowledgement that the medical records in question were not onerous to obtain, nor were they expensive.

He acknowledged that in all personal injury litigation the pre-accident health history of a plaintiff is called into question. He stated it would be unusual for the plaintiff’s lawyer to accept a retainer and draft a Statement of Claim without first acquiring three years of past medical records.

... medical records requested by the defendants will likely be necessary (by everyone) to ultimately assess the case.

In fact, Justice Sloan stated the medical records requested by the defendants will likely be necessary for all parties and potentially a jury or the court to ultimately assess the case.

Having acknowledged the foregoing, Justice Sloan held that in a “run-of-the-mill” type of personal injury action the medical records requested by the defendants were routine and reasonable, and as such, they were producible at the expense of the plaintiff.

If the cost associated with obtaining these documents is untenable for a plaintiff, that disbursement would simply be part of the upfront cost of doing business for the plaintiff’s lawyer.

Ultimately, the court held the plaintiff must produce a new Affidavit of Documents inclusive of all documents relevant to the issues, not merely documents the plaintiff intends to rely upon.

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