Patient Clinical Records
This section will address your clinical records. Basically they are everything that goes into the file your health care practitioner collects or writes about you. The law is very straightforward about it. You, the patient, have total unrestricted access to the contents of your file. That includes every notation , hand written or typed note, copies of reports made by others, etc. The only exception is if there is risk of personal injury upon learning of its contents such as psychological cases in which there would be a risk of harming oneself, i.e. suicide.
In British Columbia there a number of health care disciplines that are called self regulated and their respective membership are accountable to a regulatory college or board. The colleges/boards act to protect the public's interest and assure their memberships follow clearly defined standards about how to practice (i.e. what is permitted, a minimal level of competency) and a level of ethical behavior to follow.
Understand that the health care practitioner owns the file, but they cannot stop you having access to its contents. They must provide you with a copy of its contents within a timely period (i.e. within 30 days). Also, they are permitted to charge you a nominal fee for photocopying its contents. Failure to co-operate, with your request, opens the door for your launching a formal complaint with the health care professional's ethics and discipline committee. Before going that route try and talk directly with the care giver to ascertain if a misunderstanding or miscommunication has transpired.
- BC College of Chiropractors: 604-270-1332.
- College of Physicians & Surgeons of BC: 604-733-7758.
- College of Physical Therapists: 604-730-9193.
- College of Pharmacists: 1-800-663-1940.
- College of Massage Therapists of BC: 604-736-3404.
Here’s something to be aware of that still occasionally tends to crop up especially when a third party (i.e. an insurance provider) is paying for you, the patient, to undergo what is often termed an ‘independent assessment’. Here in B.C., when the insurance provider orders one of these assessments they typically use a ‘moonlighting’ orthopaedic surgeon. As an aside it never ceases to amaze me how an insurance corporation can get a ‘client’ in for an assessment typically in 2-3 week yet when our family doctors try to book us an appointment with one of them you are lucky if you can get in for an initial consult is less that 6-12 months, I digress.
Here’s a tidbit, you are fully within your rights to ask to record (audio and or video, etc.) the entire encounter for an assessment, regardless of who’s paying for it. You must first ask permission of the assessor thereby making them aware of your desire to record the encounter. If they refuse to allow it, you can state your desire to have their refusal entered into both their clinical notes and the final report. By recording it, if there are any discrepancies between the final report and what transpired in the assessment then the assessor will have to answer for it.
Speaking of the final report if you ask for a copy of the final report and they refuse often stating “I don’t have to give it to you. You can obtain a copy from the insurer who is paying for it.” cite this section and don’t forget there’s a formal complaint process with the College of Physicians and Surgeons of British Columbia for surgeons as well.
Remember orthopaedic surgeons make their living performing, you guessed it, orthopaedic surgery. Their patient base is generally those who are in either intense pain and/or severe disability. Yet the majority of whiplash injuries are what is termed a WAD (Whiplash Associated Disorder) 1 or 2. In other words there is a restricted range of motion of your neck, provocation/aggravation testing is positive, but there are no ‘hard’ neurological defecits (meaning your reflexes, sensation and strength) present. It doesn’t take a rocket scientist to know that you’d be very hard pressed to find any orthopedic surgeon who has any of these patients under care, yet they are the one’s the insurance providers all too often turns to for their assessments. In other words they use members of the medical fraternity, who possess a very high degree of ‘cultural authority’ yet are assessing patients they would quite literally never encounter in daily practice. You have to love the irony in it.
On a final note, regarding those performing the assessments. It’s not uncommon to make the request for your entire file records/contents after the final report is drafted. That way, you have not given the evaluator/assessor a head’s up that their records, used to produce the final report, are going to be evaluated/compared to the contents of the final report. Also, don’t forget to ask for any and all drafts of the final report, if not in the file enquire if they are in the doctor’s computer. It might interest you to know that starting in July1, 2010 the Rules of Court are undergoing a substantial revision and will directly affect medical legal report’s content and how they are prepared. Amongst the changes is the requirement that all drafts must remain in the patient’s file and be available for review.
As much as your healthcare records are between you and your caregiver they are open for review once you present to them for assessment/care for an injury(s). After that, those records enter the legal arena and are open to scrutiny, even those predating the injury(s) in question. By that I mean the other side’s insurance provider and their legal counsel. It’s ironic, here in British Columbia, a crown corporation named the Insurance Corporation of British Columbia (ICBC) is government legislated as having a monopoly as provider of ‘basic’ auto coverage for the entire province. Therefore, they are typically the insurance provider for both the plaintiff and the defendant.
It is a common tactic for the insurance provider to ‘steer’ you to your medical doctor ‘just for a report’, or any other excuse for that matter. It’s a good tactic, from a defence position, because that way you involve the healthcare professional with the highest degree of ‘cultural authority’, but negligible training in these types of injuries (see the Care Providers section of the website). Canadian medical schools offer an average of about 1500 hours in preclinical-basic science teaching. The average amount of time spent actually teaching locomotion and musculoskeletal conditions is about 35 hours. In other words only about 2.4% of their total preclinical curriculum is dedicated to teaching about the actual injuries the typical medical doctor will see probably 30% (or more). Ironic isn’t it!
Now that you have attended your medical doctor, for a condition they have none/negligible training in, their clinical notes on you, even those pre-dating the car accident/collision in question are involved and open to scrutiny by those with a vested interest in minimizing/closing your claim. It gets even better when your own lawyer falls for that tactic and actually sends you to your own medical doctor ‘just for a report’, yes the plaintiff’s own lawyer!
If you have not attended your medical doctor, for injuries related to the rear-impact collision in question, an insurer would be very hard pressed to have access their file on you. Therefore, your history of hypertension, depression, personal issues, social issues to name but a few, would be hard pressed to be drawn into the case as a possible cause of your whiplash related pain/disability. Limited access would probably be acceptable if you had been in an earlier collision (say within the previous 2-3 years) and consulted them for injuries resulting from it. Note, if an collision was many years earlier then it is for the most part irrelevant except to say the earlier collision is only relevant as a risk factor having made you more vulnerable for injuries sustained in the collision related injuries under question.
Allow me to elaborate just how far defence counsel will reach to find anything to blame a person’s whiplash related pain/disability on, other than the rear-impact collision in question. I was once on the witness stand and the defendant’s lawyer, in a most aggressive posture and tone, asked me “Doctor is it not true that Mr._______ has twins?” I answered “Yes that is true.” She then went on to make the stunning revelation, after much in depth research no doubt, “Could the fact that Mr._______ has these twins not be the source of his headaches?” Yes, you read that last line right. After much contemplation the only answer I could come up with, while stifling a major chuckle, was “No, I’m afraid I am not familiar with that research.” As I left the witness stand, with the defence counsel shaking my medical legal report at the judge stating “You can’t allow this”, with my ever present plastic spine in hand, I had to walk past my patient’s lawyer who looked up from his table and quietly mouthed “Thank you” with a smirk bigger than the one I was suppressing while on the stand following that silly question.
That same patient came into my office days after the trial with the biggest grin on his face and informed me he received the maximum award possible by the court. The insurer and lawyer for the defence go through your records to find something to blame your current level of pain and or disability on. Now that you have attended your medical physician all of the file they have amassed on you is open to scrutiny. Remember common sense dictates that with minimal damage to the rear of your vehicle there should be a minimal possibility that you could have been injured. It’s in textbooks that there is no correlation between collision speed (delta V) - amount of vehicle damage (or lack thereof) - possibility of injury. So now they peruse your personal records and try and find something other than the collision to blame for your current level of pain on. Here are some examples of what the defence is looking for:
- Prior complaints, in the same area(s), thereby allowing them to infer that is the cause of your current complaints. They will often pursue this tact if you denied having had a previous problem, at the area(s) of complaint, at Discovery. Remember that having had a previous complaint/condition, at the same area, is a scientific literature cited risk factor. In other words having injured the area(s) before makes more vulnerable to injuring it again.
- Are there any confounding areas that can help in the defence? Issues here can be related either to health (i.e. cancer, heart conditions, systemic illnesses, depression, etc.) or injury (prior slips and/or falls, earlier motor vehicle accidents, etc.).
- Any embarrassing issues often of a personal nature, yes even years prior to the collision. Subjects under this section would be spousal infidelity, spouse growing marijuana, any credibility issues, etc.
- Failure to mitigate. In other words have you done what you can to help yourself, i.e. exercises as recommended by your healthcare provider. One way I can tell if the patient is doing what I have recommended is to ask them to show me the exercises, on a visit after the one I gave them. If they can’t reproduce them then I am quite confident they are not being done on a regular basis.
Remember everything in your medical doctor’s file kept on you is open to scrutiny once you attend them for an injury, even the entries predating the car accident injuries in question. Please understand this is not a scare tactic to stop you consulting your family doctor. Say you suffered a mild traumatic brain injury, courtesy of a low speed rear-impact collision then absolutely they are the correct caregiver (ie. for a referral to a specialist).
As an aside, because a medical doctor’s expertise is in systemic diseases, when you get them discussing said conditions they are in their comfort zone. Get a medical doctor on the stand, in a musculoskeletal injury case, and the defence will often use the tact of having them outline your systemic illness history in full detail because that is the field they are trained in and comfortable discussing, all the while your full file sitting right on their lap for them to refer to.
Compare that to your chiropractor whom you have been a patient of for years. Typically the pre-collision history is of a biomechanical nature, i.e. former car accident injuries/falls. That history is totally relevant. As discussed in the ‘Risk Factors’ section of my web site, having suffered a prior injury is a scientific literature cited risk factor making you more vulnerable for the injury suffered following the collision in question. Now do you see the difference? If not and you would still like further clarification, email me or attend one of my classes (email me if you desire to be on the list for the next one) on whiplash.