Will I have to provide my opponents with copies of my medical records if I make a personal injury claim?
The short answer is: maybe. It will depend upon the circumstances of the case and the type of injury sustained.
Before the question can be answered, it is important to understand why medical evidence is important in a claim for personal injury compensation.
Why is medical evidence necessary to prove a personal injury claim?
Every personal injury claim involves consideration of three important issues:
- Liability: who is to blame for the accident?
- Causation: was the injury directly caused as a result of the accident
- Quantum: how much compensation should the injured claimant receive?
When considering liability, the extent or seriousness of the injury is not taken into account. Liability relates only to whether the opponent has been negligent or breached a duty of care owed to the claimant.
If the claimant can prove that liability for the accident rests with the defendant, the next step is to prove causation.
In a personal injury compensation claim, causation is proved by medical evidence. The claimant must prove that the injury was caused, or at least contributed to, by the accident.
Only when liability and causation have been proved will the quantum or value of the claim be assessed.
The role of medical evidence in a personal injury claim
To prove causation, the claimant must produce independent medical evidence. This is usually in the form of a report prepared by an independent medical expert.
The medical report will provide details of the injury sustained, the effects of the injury upon the claimant, and how long the recovery will take.
The report will also provide information about any future medical complications or problems that the claimant may have as a result of the accident.
The role of medical evidence in proving the value of a claim
The medical report is also important when assessing the value, or quantum, of the claimant’s claim.
There are lots of factors which are taken into account when assessing the value of a claimant’s compensation claim. Medical evidence is extremely important. It is not possible to accurately assess the value of most personal injury claims without medical evidence.
There is a real risk that the claim will be under-valued if it settled without proper medical evidence. (You can read more about this here).
Why is medical evidence so important when valuing a personal injury claim?
Compensation for the effects of the injury is valued by reference to the severity of the injury sustained. The impact that the injury has had on the claimant’s life, work, hobbies, etc, is also taken into account. Independent medical evidence, in the form of a report from an independent doctor, is used when valuing a claim.
Medical evidence and financial losses
Financial losses and expenses incurred as a result of an accident, such as loss of earnings, are always claimed in addition to any compensation for injury. Financial losses must be supported by evidence, such as receipts for expenses. Evidence from a claimant’s employer is also required to confirm the loss of earnings incurred.
Medical evidence, is still relevant to the financial loss claim. For instance, the medical expert will consider matters such as whether the time taken off work was reasonable in view of the injury sustained. Matters such as the claimant’s ability to return to work, or ongoing restrictions to do their normal job are also covered by the medical report. These matters are particularly important in cases where the claimant hasn’t made a full recovery from the injury and may have some ongoing future disability.
The medical report will also consider matters such as the medical treatment, rehabilitation, or care that the claimant may require.
So you see, that the medical report is important to support both the injury compensation claim and the financial loss claim.
The role of medical records in a personal injury claim
In many low value road accident claims the medical report will be produced by an independently nominated GP. In such cases the report is usually prepared on the basis of information obtained by the doctor at an examination of the claimant. The medical records are often not required in such low value cases.
In more serious injury cases it is usual for the claimant’s solicitor to obtain copies of the claimant’s full GP records. This includes both the records dating from before and after the accident. Hospital records, x-rays and scan results from any hospital that the claimant attended will also be obtained.
The claimant will be examined by an independent doctor, usually a consultant specialist in respect of the particular injury sustained. This examination is arranged by the claimant’s solicitor.
An independent medical report, containing the consultant’s opinion about the injury, is then prepared on the basis of both the claimant’s examination and a review of the claimant’s medical records.
Why are the Claimant’s medical records needed in a compensation claim?
It is often necessary for the consultant to review the medical records. This allows the consultant to consider and report upon the history of the injury and the treatment received.
The consultant will also consider whether the claimant had any former or pre-existing condition which might affect the recovery from the injury. In some cases, particularly in back injury cases, the claimant may already have been suffering from some symptoms prior to the accident.
Will a former or pre-existing medical condition cause a problem?
Just because the claimant had a problem before the accident doesn’t mean that they didn’t also sustain an injury in the accident. It may, however, be the consultant’s opinion that not all of the claimant’s symptoms have been caused by the accident.
In some cases, a former condition or prior injury may have been made worse by the current accident. If this is the case the claimant will be entitled to be compensated for the extra symptoms and problems caused by the accident.
What medical evidence is disclosed to the opponent?
In the majority of claims the only medical evidence provided to the opponent is the independent medical report. The claimant’s actual medical records are not disclosed to the opponent.
It is important to remember that details contained in the medical records will also be recorded in the independent medical report. This means that details of the claimant’s relevant past medical history will be contained in the medical report for the opponent to see.
When will medical records be provided to the other side?
In the vast majority of straightforward or lower value claims the medical records themselves will not be provided to the opponent.
In more complex or serious injury cases, the opponent, or more likely their solicitor or insurance company, will request copies of the claimant’s medical records.
The defendant solicitors may wish to review the claimant’s medical records for a number of reasons including:
- checking if there is anything in the claimant’s past medical history which may have an impact on the claimant’s current symptoms
- to see if there is anything in the records to show that the claimant failed to obtain appropriate medical treatment or may be exaggerating the injury
- to check that the records of the original injury are the same as the injury claimed for.
- to enable the defendant to ask the medical expert questions to clarify any part of the medical report
- In higher value cases the opponent is likely to seek permission to obtain their own medical report. In such cases the medical records must also be provided to the defendant’s chosen expert for the purposes of preparing the report
What if I don’t want to provide copies of my medical records to the opponent?
If you, as the claimant, do not wish to provide copies of your medical records, the opponent may make an application to the court. This will be to seek a court order for release of the medical records.
The court will order disclosure of the medical records if it is necessary for the issues in the case to be properly dealt with. If the claimant refuses to comply with a court order there could be serious consequences. This could include claim being struck out by the court, with no compensation being awarded.
Will I have to show my medical records to my opponent if I make a personal injury claim?
In the majority of cases your medical records will not be disclosed to the opponent.
However, in every case there is a possibility that you may be required to provide copies of the your medical records to the opponent and their solicitors, for the reasons set out above.
The burden of proving a claim always falls on the claimant. All claimants in personal injury claims must be aware that, as part of the claims process, confidential information and medical records may have to be disclosed to the opponent.
Further questions? See our Frequently Asked Questions, or feel free to contact us for no obligation advice.