Fitzgerald v Munro [1998] VSC 30

11. In her affidavit of documents filed in the proceeding the plaintiff has discovered not only the medical records of the Knox Private Hospital relating to her treatment but also the medical records of St. Vincent's Hospital relating to the treatment she received at that hospital between October 1975 and October 1995. The plaintiff claims privilege in respect of both sets of records.

14. Whilst the application before me only relates to the St. Vincent's Hospital medical records I cannot but observe that it would seem to me to be difficult for the plaintiff to maintain any claim of privilege in respect of the Knox Private Hospital records. In that regard I think it is strongly arguable that having chosen to sue the Knox Private Hospital and the two specialists who treated her whilst she was an in-patient at the hospital, the plaintiff has waived any claim to privilege. However, as I have pointed out, that matter was not debated before me and it is unnecessary therefore that I make any ruling concerning it.

17. Following delivery of the plaintiff's affidavit of documents thereby disclosing to the defendants the fact that the plaintiff had received treatment at St. Vincent's Hospital between the dates in question, the firstnamed defendant subpoenaed the Registrar of St. Vincent's Hospital to produce to the Court the complete hospital records relating to the plaintiff for the period from 1 February 1994 to 1 July 1998.

20. In due course the Registrar complied with the subpoena and produced the records to the Prothonotary of the Court.

23. Upon becoming aware of the subpoena, the plaintiff objected to any inspection of the records by the solicitors for the firstnamed defendant. Pursuant to the provisions of R.42.10 of the Supreme Court Rules the Prothonotary referred the subpoena to me for the hearing and determination of the objection.

26. The principle argument advanced on behalf of the plaintiff is that the St. Vincent's Hospital records are privileged by virtue of the provisions of s.141(2) of the Health Services Act 1988 and s.28(2) of the Evidence Act 1958.

29. Section 141(2) of the Health Services Act reads:

"(2) A person to whom this section applies must not, except to the extent necessary - (a) to carry out functions under this or any other Act; or (b) to exercise powers under this or any other Act in relation to a relevant health service; or (c) to give any information he or she is expressly authorised, permitted or required to give under this or any other Act - give to any other person, whether directly or indirectly, any information acquired by reason of being a person to whom this section applies if a person who is or has been a patient in, or has received health services from, a relevant health service could be identified from that information."

St. Vincent's Hospital is a person within the meaning of s.141 of the Act.

34. A similar agreement in relation to s.141(2) was put to me in Hurley v. Southwick & Ors. (unreported 17 March 1998) concerning the Alfred Hospital records relating to the plaintiff in that case.

"In my opinion, the short answer to that proposition is that in answering the subpoena the Alfred Hospital is not giving information to a person. It is producing the medical file relating to the plaintiff to the court. In that connection see the decision of Byrne J. in Transport Industries Insurance Company Limited & Ors. v. Mason & Ors. (unreported 2 June 1996) and the long line of authority referred to by His Honour. The simple fact of the matter, as that line of authority establishes, is that a court is not a person for the purposes of legislation such as s.141 of that Act."

41. I have no reason to change my opinion in the matter.

44. Section 28(2) of the Evidence Act reads:

"(2) No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient."

48. I should perhaps point out that the provisions of s.28(2) of the Evidence Act were not relied upon by the plaintiff in Hurley. In that case the plaintiff had been admitted to the Alfred Hospital for a relatively short period of time and then transferred to another hospital. The hospital records which were produced to me in Court, did not contain entries made by any physician or surgeon but only entries made by ambulance attendants and nursing staff. Accordingly the provisions of s.28(2) had no application to the case. That is not the situation in the present case.

51. It is common ground between the parties that whilst the St. Vincent's Hospital records contain entries made by the nursing staff relating to the plaintiff, they also contain entries relating to the plaintiff made by medical practitioners who attended the plaintiff whilst she was a patient at the hospital.

54. In my opinion the entries in the St. Vincent's Hospital records relating to the plaintiff and made by medical practitioners who attended the plaintiff whilst she was a patient at the hospital are privileged.

57. The underlying purpose of s.28(2) is to preserve confidentiality to a person who has been treated by a medical practitioner. In that regard see the observations of McGarvie, J. in PQ v. Australian Red Cross Society and Others [1992] VicRp 2; (1992) 1 V.R. 19 at p.24 et seq.

60. If a medical practitioner who has treated a patient is precluded from divulging in any civil suit action or proceeding information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient without the consent of the patient, it would make a mockery of the section if entries in the patient's medical records containing that information and made by that medical practitioner could be divulged in any civil suit action or proceeding without the consent of the patient.

63. Accordingly I rule that any entry in the St. Vincent's Hospital records relating to the plaintiff made by any physician or surgeon who attended the plaintiff is privileged. I make no such finding in relation to the entries in the records made by the nursing staff. However, in the exercise of my discretion I refuse the firstnamed defendant's application to inspect those parts of the records. It would seem to me that the firstnamed defendant is simply engaged upon a fishing expedition in relation to the records. In my opinion it is more appropriate that the trial Judge determine whether the firstnamed defendant should have access to those parts of the records.

66. It was submitted by the solicitor acting for the first named defendant that if I was to uphold the plaintiff's claim that the records or part of them are privileged, I should place limits on the use to be made of the records at the trial of the proceeding. In that connection I was referred to the decision of Moore, J. in Alphapharm Pty. Ltd. v. Eli Lilly Australia Pty. Ltd. (1996) 69 F.C.R. 149 in which his Honour held that if a party claims privilege and thereby precludes the other party from seeing the documents the subject of the claim, limits may be placed on the use that can be made of those documents at the trial itself.

69. In that case the actual order of his Honour relevant for present purposes reads:

"4. ... that the respondent not be permitted, unless with the leave of the Court, to tender at the trial of the proceedings (a) the documents identified in paragraph 3 above; and (b) any documents relating to the issues or matters raised in the documents identified in paragraph 3 above."

Having stated the order his Honour continued at p.163 of the decision:

"It can be seen that proposed order 4 limits the use that might be made, at the trial, of the privileged documents and documents relating to the 'issues or matters raised in the (privileged) documents'. While this last element of the order is in general and potentially far-reaching terms, it is subject to the qualification in the prefatory words, namely it is subject to the grant of leave by the Court. Proposed order 3 is likewise qualified. In my opinion, basic fairness suggests that if a party claims privilege and thereby precludes the other party from seeing the documents the subject of the claim, limits may be placed on the use that can be made of those documents at the trial itself. Notwithstanding the width of order 4 it is, in the circumstances, an appropriate one. The potentially oppressive effect of the width of the order is met, in my opinion, by the recognition that the trial judge may permit use of the documents or other material relating to their contents if it appears appropriate."

75. In my opinion it is undesirable that I impose any such restriction on the plaintiff. To do so may well inhibit the trial Judge. If there is to be any restriction imposed upon the plaintiff concerning the use, if any, to be made of the St. Vincent's Hospital records at the trial of the proceeding, it is preferable that that matter be dealt with by the trial Judge.

78. The firstnamed defendant's application to inspect the St. Vincent's Hospital medical records relating to the plaintiff is refused. I order that the plaintiff's costs of the application be taxed and paid by the firstnamed defendant.