COURT CASES on the USE of CLINICAL RECORDS
Clinical records are invariably obtained by lawyers for ICBC during the litigation process. The clinical records are scrutinized by the ICBC lawyers, who then ask the Plaintiff questions at an Examination for Discovery. They can also be used at trial for cross-examination purposes, in an effort to discredit the Plaintiff, or undermine the severity of the Plaintiff’s injuries. Sometimes, Plaintiff’s counsel will have certain portions of the clinical records redacted, if the information that is redacted is of a highly personal and sensitive nature, with no bearing whatsoever to the issues at hand. Applications are sometimes brought by ICBC’S lawyer as well for the production of such redacted information.
THE LAW of ADMISSIBILITY and USE of CLINICAL RECORDS
In Edmondson v. Payer, the Plaintiff was injured in a car accident, and brought an ICBC claim for damages for pain and suffering, as well as other heads of damages. By the time of trial, more than five years after the accident, the Plaintiff still experienced symptoms with respect to her neck. The Plaintiff saw many doctors and, although she did not report any symptoms, she maintained she was still symptomatic at those times. The Court provided a useful summary of the law as it pertains to the admissibility and use of clinical records.
(2) In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if
(a) the document was made or kept in the usual and ordinary course of business, and
(b) it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time after that.
The words “to record in that document a statement of the fact” mean, in our opinion, that the fact occurred within the observation of someone who has a duty himself to record it or to communicate it to someone else to record as part of the usual and ordinary course of business.
 Section 42 of the Evidence Act therefore makes records admissible to prove such things as a doctor’s direct observations of the patient’s medical condition, the results of tests performed or ordered by the doctor, and the medical advice given. It eliminates the need for doctors to give oral evidence of those facts, of which they are unlikely to have independent recollection. But as the court noted in Olynyk, this “does not make everything in a document admissible just because the document is one which for some purposes falls within the section.”: at 301.
 The principles governing the admissibility and use of clinical records (and business records generally) were summarized by Burnyeat J. in McTavish v. MacGillivray 1997 CanLII 4372 (BC SC), (1997), 38 B.C.L.R. (3d) 306 at 311-12 (S.C.):
1. The notes taken must be made contemporaneously.
2. The notes must be made by someone having a personal knowledge of the matters being recorded.
3. The notes must be made by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business.
4. The matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business.
5. A statement in the records of the fact that a certain diagnosis was made will be admissible.
6. Recorded observations, diagnosis and opinions will be admissible providing they are recorded in accordance with points 1 through 4.
7. The fact that the referring doctor relied upon another doctor’s opinion to assist in coming to his or her own diagnosis and opinion is only evidence of that fact so that the other opinion does not become evidence unless it is otherwise admissible. Accordingly, it is only evidence of the fact that the referring doctor wished or required that opinion to be received before forming his or her own opinion.
8. Statements made by parties or by experts which are recorded in the usual and ordinary course of business but which lie outside the exception to the hearsay rule are hearsay and will not be admitted into evidence unless they can be brought within Section 14 of the Evidence Act which allows for the admissibility of such statements if it can be shown that they are proof of a prior inconsistent statement.
(1) Subject to subsection (2), if a witness, in cross examination as to a former statement made by the witness relative to the subject matter of the proceedings and inconsistent with the present testimony of the witness, does not distinctly admit to making the statement, proof may be given that the witness did in fact make that statement.
(2) Before giving the proof referred to in subsection (1),
(a) the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and
(b) the witness must be asked whether or not the witness made the statement.
 Portions of clinical records that report statements made by the plaintiff, including the plaintiff’s description of symptoms, are therefore evidence of the fact the plaintiff made the recorded statements on those occasions. Where the recorded statements are inconsistent with the plaintiff’s evidence at trial, they may be used in cross-examination to impeach the plaintiff’s credibility.
 Unlike prior inconsistent statements of an ordinary witness, which may only be used to impeach credibility, prior inconsistent statements of a party may also be treated as admissions and accepted for the truth of their content. However, there are important qualifications that apply to such statements in clinical records, whichever purpose they are being used for.
 In Diack v. Bardsley 1983 CanLII 541 (BC SC), (1983), 46 B.C.L.R. 240, 25 C.C.L.T. 159 (S.C.) [cited to B.C.L.R.], aff’d (1984), 31 C.C.L.T. 308 (C.A.), McEachern C.J.S.C., as he then was, referred to differences between the evidence of a party at trial and what was said by that party on examination for discovery, at 247:
… I wish to say that I place absolutely no reliance upon the minor variations between the defendant’s discovery and his evidence. Lawyers tend to pounce upon these semantical differences but their usefulness is limited because witnesses seldom speak with much precision at discovery, and they are understandably surprised when they find lawyers placing so much stress on precise words spoken on previous occasions.
 That observation applies with even greater force to statements in clinical records, which are usually not, and are not intended to be, a verbatim record of everything that was said. They are usually a brief summary or paraphrase, reflecting the information that the doctor considered most pertinent to the medical advice or treatment being sought on that day. There is no record of the questions that elicited the recorded statements.
 When statements of a party are relied on for the truth of their content, the authors of Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009) point out at paragraph 6.398 that one rationale for the admissibility of such statements is that “it is always open to the party to take the witness box and testify either that he or she never made that admission or to qualify it in some other way.” The authors also emphasize at paragraph 6.413, that the whole of a statement must be put into evidence:
Thus, if an admission contains statements both adverse and favourable to a party and if an opponent tenders it, he or she may thereby be adducing evidence both helpful and damaging to his or her cause.
IRRELEVANT CLINICAL RECORDS and REDACTION
In Hyvarinen v. Burnett et al., the Plaintiff was injured in a motor vehicle accident, and subsequently brought an ICBC claim for damages for pain and suffering, alleging neck pain, back pain, shoulder pain, nerve damage, and a concussion. ICBC’S lawyer made several requests for documents to be produced, however the Plaintiff refused on the primary basis that the requests were too wide in scope, were invasive of his privacy, and that the documents had no connection to the issues at hand. An application was brought by ICBC’S lawyer, resulting in divided success. The Court had occasion to comment on the issue of irrelevant medical records.
 While I accept that when a document is produced by a party, it should generally be produced in its entirety, the exception is where a party is able to establish a good reason for a document not to be produced. In North American Trust Co. v. Mercer International Inc. (2000) 71 B.C.L.R. (3d) 73 (BCSC), Justice Lowry, then of this court, reiterated the general principle but said:
…But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purposes in resolving the issues. (para. 13)
 In this case, there are two reasons why the general rule about redacted documents should not apply. The first is because the documents sought in unredacted form are not, although generally listed as such, single documents. Rather, they are a series of records compiled over time from a number of interactions with the plaintiff. These records should not be approached globally as if they were a single document. Each entry requires a separate analysis as to whether it may prove or disprove a material fact or relate to a matter in a question in this action.
 Second, and importantly in this case, the court must be careful not to unnecessarily infringe on the plaintiff’s privacy interests. Recently, in Kaladjian v. Jose, 2012 BCSC 357, Justice Davies reiterated the importance of a plaintiff’s privacy interests in a personal injury action. He said:
Every individual’s health and the medical treatment of it is a personal and private matter that should not be lightly interfered with. In today’s world of medical specialization, disclosure of even the name of a medical professional consulted by an individual for reasons wholly unrelated to a defence plea of a prior existing condition is an unwarranted and unnecessary invasion of privacy. (para. 75)
EXCLUSION of CLINICAL RECORDS INTENDED to be USED to CROSS-EXAMINE FAMILY DOCTOR
In Bancroft-Wilson v Murphy, the Plaintiff was injured a car accident, and brought an ICBC claim for pain and suffering, diminished earning capacity, and other heads of damages. The Plaintiff was awarded $70,000.00 and $125,000.00 for diminished earning capacity, which were upheld on appeal. The British Columbia Court of Appeal also upheld the trial judge’s decision to exclude the introduction of certain clinical notes by the ICBC lawyer for the purposes of cross-examining the Plaintiff’s family physician.
 During cross-examination of the plaintiff’s family physician, Dr. Dwyer, counsel for the defendant asked to have his clinical notes admitted as an exhibit. Counsel stated that the defendant intended to rely on the absence from the notes of any notation of a complaint by the plaintiff related to limitations on his work capacity, particularly with respect to script writing. Dr. Dwyer testified that he would have noted such complaints if they had been made to him. Counsel argued that the clinical notes were admissible as business records under s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124. The trial judge questioned the admissibility of the portions of the notes that recorded the plaintiff’s complaints of symptoms. He distinguished between the doctor’s notes of the results of his physical examination of the plaintiff and notes of the plaintiff’s subjective complaints to the doctor. The trial judge considered the plaintiff’s statements to be hearsay. He questioned the evidentiary value of the records apart from the doctor’s testimony, pointing out that the doctor was entitled to refer to his notes to refresh his memory and “there’s nothing preventing you from exploring all of these questions with this witness.”
 The trial judge summarized his conclusions as to the attempted use of the notes to discredit the plaintiff’s account of symptoms in these terms (at paras. 35 to 37):
I accept Mr. Bancroft-Wilson’s evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance. Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful. It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment. These notes are not made for investigative and litigation purposes. If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.
Physicians are not investigators. They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes. The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness. It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.
I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.
 The defendant contends that the trial judge erred in law by refusing to admit the clinical notes as admissions against interest. This Court in Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, 70 B.C.L.R. (4th) 247, has recently confirmed that statements made by a plaintiff to doctors and recorded in clinical notes are hearsay and not admissible by the plaintiff to prove the truth of the symptoms complained of to the doctors. The Court in Samuel was not concerned with the exception to the hearsay rule for admissions against interest. Statements made by a plaintiff to doctors may be admissible under that exception when tendered for that purpose by the defendant or other party opposed in interest to the plaintiff; see Cunningham v. Slubowski, 2003 BCSC 1854 at para. 14.
 While clinical records may be admissible as a record of admissions against interest in appropriate circumstances, in the instant case the defendant seeks to rely on the clinical notes to support the inference that the plaintiff did not complain to the doctor of the symptoms he alleges because the notes do not contain any reference to those symptoms. In effect, the defendant is contending for an admission by omission. In my view, that overstretches the limits of the admissions exception in the circumstances here. The notes standing alone are of little if any weight for the purpose intended by the defendant and I think that the trial judge adopted the proper course in limiting their use to refreshing the memory of the doctors during their testimony.
 Viewing the trial judge’s reasons as a whole on this aspect of the case, I am satisfied that he did not reject entirely the admissibility of the clinical notes and he treated their significance as a matter of weight in the context of the doctors’ testimony. For example, the trial judge observed that Dr. Dwyer’s notes supported the plaintiff’s complaint of back pain within four days of the accident. The judge advised counsel for the defendant that she could renew her application to admit the notes later and counsel did not take up that opportunity. I think that any evidentiary value attached to the notes was merged in the testimony of the doctors and there was no prejudice to the defendant arising from their formal inadmissibility as admissions against interest.
USING CLINICAL RECORDS in an ATTEMPT to DISCREDIT the PLAINTIFF
In Edmondson v Payer, the lawyer for ICBC attempted to use clinical records to discredit the Plaintiff, however was unsuccessful in this regard. The Court reviewed the limited purposes for which clinical records can be admissible.
 Much of the defendant’s submission on the plaintiff’s credibility flows from what is, or is not, found in the clinical records of doctors the plaintiff has seen. It is therefore important to review the limited purposes for which clinical records are admissible. It is easy to lose sight of those limitations in cases of this kind, where the time spent parsing a single note made by a doctor often far exceeds the length of the medical appointment that the note records…
 The difficulty with statements in clinical records is that, because they are only a brief summary or paraphrase, there is no record of anything else that may have been said and which might in some way explain, expand upon or qualify a particular doctor’s note. The plaintiff will usually have no specific recollection of what was said and, when shown the record on cross-examination, can rarely do more than agree that he or she must have said what the doctor wrote.
 Further difficulties arise when a number of clinical records made over a lengthy period are being considered. Inconsistencies are almost inevitable because few people, when asked to describe their condition on numerous occasions, will use exactly the same words or emphasis each time. As Parrett J. said in Burke-Pietramala v. Samad, 2004 BCSC 470, at paragraph 104:
…the reports are those of a layperson going through a traumatic and difficult time and one for which she is seeing little, if any, hope for improvement. Secondly, the histories are those recorded by different doctors who may well have had different perspectives and different perceptions of what is important. … I find little surprising in the variations of the plaintiff’s history in this case, particularly given the human tendency to reconsider, review and summarize history in light of new information.
 While the content of a clinical record may be evidence for some purposes, the absence of a record is not, in itself, evidence of anything. For example, the absence of reference to a symptom in a doctor’s notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom. At most, it indicates only that it was not the focus of discussion on that occasion.
 The same applies to a complete absence of a clinical record. Except in severe or catastrophic cases, the injury at issue is not the only thing of consequence in the plaintiff’s life. There certainly may be cases where a plaintiff’s description of his or her symptoms is clearly inconsistent with a failure to seek medical attention, permitting the court to draw adverse conclusions about the plaintiff’s credibility. But a plaintiff whose condition neither deteriorates nor improves is not obliged to constantly bother busy doctors with reports that nothing has changed, particularly if the plaintiff has no reason to expect the doctors will be able to offer any new or different treatment. Similarly, a plaintiff who seeks medical attention for unrelated conditions is not obliged to recount the history of the accident and resulting injury to a doctor who is not being asked to treat that injury and has no reason to be interested in it.
 The introduction of clinical records cannot be used to circumvent the requirements governing expert opinion evidence set out in Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/ 2009 [Rules]. A medical diagnosis−and the reasoning that led to the diagnosis−is a matter of expert opinion. Clinical records are admissible for the fact that a diagnosis was made, but the court cannot accept the diagnosis as correct in the absence of proper opinion evidence to that effect. Depending on the facts and issues in a particular case, the mere fact that a diagnosis was made may or may not be relevant.
 Clinical records may provide the assumed facts on which an expert may offer an opinion, including diagnosis. For example, statements made by the plaintiff and recorded in clinical records at various times may be relied on by a defence expert in concluding that the plaintiff’s current symptoms are the result of a condition that pre-dated the accident. That does not mean that the court can itself use clinical records to arrive at a medical diagnosis in the absence of expert opinion.
In Van Den Hemel v. Kugathasan, the lawyer for ICBC attempted to discredit the Plaintiff by using clinical records to show that there were “temporal gaps” in the reporting of her injuries, however the Court would have none of it.
 Another wing of the defendants’ attack on the plaintiff’s testimonial reliability – more particularly sincerity – focused on what the defendants say is the disparity between the plaintiff’s telling me, in effect, that her pain and suffering in the neck, shoulders and back has been present, persistent and continuous since the first motor vehicle accident in April 2006 and what the defendants describe as telling temporal gaps in what the plaintiff complained of when she was seen by her family doctor, Dr. Sun, over the years.
 The plaintiff, in effect, told me that on any given occasion when she saw Dr. Sun and had her few minutes in the examining room that she went straight to only what was her most significant problem or complaint that day. I accept that. It makes sense in light of how our medical system functions today. Also I infer from the whole of Dr. Sun’s testimony that it was her practice to let the patient take the initiative and that she did not invite the patient to lodge a bill of complaints. Last, I note that – as will become clear later in these Reasons for Judgment – throughout the four years in question in the case at bar the plaintiff has been a woman beset with a myriad of problems for which she sought help or advice from caregivers, only some of which were neck, back and shoulder problems.
ADMISSIBILITY of CLINICAL RECORDS to PROVE TRUTH of THEIR CONTENTS
In Smith v Wirachowsky, the Plaintiff was involved in a rear end accident, and subsequently brought an ICBC claim for her injuries, which included claims for pain and suffering, loss of income, diminished earning capacity, loss of future housekeeping, and cost of future care. Liability was admitted by the Defendant. Counsel for the Plaintiff attempted to use the clinical records of a physiotherapist in support of the Plaintiff’ case, however the Court ruled that the clinical records in question were inadmissible.
 An issue of admissibility arose early in the testimony of physiotherapist Brandon Butt (who was the first witness called). Plaintiff’s counsel sought to lead evidence of the complaints made by the plaintiff to Mr. Butt, by having him read those complaints from his clinical notes. It was submitted on behalf of the plaintiff that the complaints made by the plaintiff to her doctors and therapists as recorded in the clinical records of these healthcare professionals, was admissible to prove that they were made (but not for their truth).
 It was common ground that the clinical records qualified as “business records” within s. 42 of the Evidence Act. It was also agreed that the plaintiff’s statements in the clinical records, if admitted, could not be used to prove the truth of their contents or to bolster the credibility of the plaintiff’s trial testimony. …
 In my opinion, the authorities and the rules of evidence establish that the fact that a plaintiff made a particular statement to a doctor or therapist can be relevant to the following issues (where such issues exist):
a) In cross examination of the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or a damaging admission);
b) In re-examination of the plaintiff, to rebut the suggestion (by defence counsel) of recent fabrication or failure to complain;
c) In cross examination of a doctor who examined or treated the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or damaging admission), where the plaintiff denied or did not admit making the statement;
d) Where a doctor’s or therapist’s particular recommendation for the plaintiff’s treatment is challenged, and the plaintiff’s statement is relevant to explain why that treatment was prescribed or administered; and
e) In cross examination of a medical expert witness called by either party, where it is alleged that the expert relied on a particular statement made by the plaintiff to him or her; or where it is alleged that the expert disregarded or failed to consider a particular statement made by the plaintiff.
 It should be noted that there are at least two ways in which a plaintiff’s statements recorded in clinical records may become admissible as proof of their truth. The first way is where the plaintiff admits making a particular statement to a doctor or therapist which appears to be inconsistent with the plaintiff’s trial testimony, but then adopts the previous statement as being true (and rejects the conflicting trial testimony). In that situation, the previous statement can be used as proof of its truth, if the trier of fact accepts the plaintiff’s testimony on this point. More frequently, the plaintiff will reject the previous statement as being false and give an explanation for making it (such as mistake). In that case, as is well known, the previous statement, if inconsistent, can only be used to assess the credibility of the plaintiff’s trial testimony.
 The second way is where the plaintiff admits making (or is shown to have made) a previous statement recorded in the clinical records which if true, would constitute an admission against interest. In that situation, the plaintiff’s previous statement can be used by the trier of fact as proof of its truth (even if the plaintiff denies that his or her previous admission was true).
 In the present case, the statements of the plaintiff to her physicians and therapists were not relevant to any issue in the trial that could have made them admissible at the instance of the plaintiff. A potential exception could occur in a case where a plaintiff had told her doctor that she had recovered from an injury, but on a subsequent date or dates attended a doctor again and complained that an injury continued to generate symptoms of pain and disability. In that situation, the plaintiff’s subsequent complaints to her doctor would be admissible in re-examination, to rebut the suggestion that the plaintiff had made no further complaints of pain after a certain point in time. But of course the complaints made subsequently by the plaintiff could not be admitted to prove their truth. It was not shown that this situation occurred here.