Airing Dirty Laundry: Implied Waiver of Privacy in Medical Records

Glegg v. Smith & Nephew Inc. is an important case regarding privacy in medical records. While many people may believe their confidential medical matters will be protected behind the closed door of their doctor’s office, their privacy may not be guaranteed.

Louise Glegg, the respondent, fractured her right femur and hip and was taken to the hospital after falling off a bicycle in July of 1996. At the hospital, an orthopedic surgeon, Dr. Carter, performed a reduction of the fracture and inserted a metal implant manufactured and sold by Smith & Nephew Inc. The implant caused pain for Glegg to the extent that she had to seek advice from an additional orthopedic surgeon, Dr. Dextradeur. Although the implant was eventually removed by Carter after the fracture consolidated, Glegg was depressed and unable to work during the time that the implant was in. As a result, she filed an action for damages against Carter and Dextradeur alleging negligence for their failure to foresee, diagnose, or treat an allergic reaction caused by the implant and their failure to provide adequate information about the product. Smith & Nephew Inc. was also named as a defendant for allegedly manufacturing a defective medical device.

During examination for discovery Carter, Dextradeur, and Smith & Nephew Inc., the appellants, learned that Glegg consulted with a psychiatrist and requested disclosure of the psychiatrist’s records. Glegg opposed the production of this record and the matter was taken to Quebec’s Superior Court, where the judge ordered Glegg’s counsel to produce the record so that he could rule on the objection. At the second hearing, following his client’s instructions, Glegg’s counsel failed to comply with the order. The judge then dismissed Glegg’s objection on the grounds that there was inadequate information for him to verify its basis. The Court of Appeal reversed this decision and referred it back to the Superior Court to determine which parts of the psychiatric record were relevant and would merit disclosure.

The SCC, however, allowed the appeal and restored the Superior Court’s decision. In coming to this decision, the SCC discussed the limits of a physician’s duty of professional secrecy. While there is statutory support, such as s. 9 of the Quebec Charter and the Code of Ethics of Physicians, for the importance of a physician’s duty of professional secrecy, a patient may either expressly or through implication, waive their right to secrecy. A waiver may be implied when the actions of the holder of the right are inconsistent with an intent to maintain professional secrecy. In this case, by claiming psychological damages, which would inevitably lead to “private” questions regarding the state of her mental health, Glegg waived the confidentiality of her medical record and the right to professional secrecy.

An implied waiver does not, however, allow for open access to a patient’s medical record. The party seeking the access must demonstrate relevance between the requested information and nature of the case or defence. In order to demonstrate relevance, the SCC explained that the defendant must demonstrate that the:

disclosure of the document will be useful, is appropriate, is likely to contribute to advancing the debate and is based on an acceptable objective that he or she seeks to attain in the case, and that the document to be disclosed is related to the dispute.

This broad interpretation of relevance was met in Glegg, as the defendants’ expert psychiatrist stated that Glegg’s psychiatric record would be useful to him in forming an opinion and assessing her psychiatric condition.

This decision significantly impacts the availability of one’s medical records in examination for discovery. At this stage, where evidence is being disclosed, the concept of relevance is defined very broadly. A document is not required to be necessary to the resolution of the dispute in order to be disclosed; rather, it is sufficient for the document to be “useful” in advancing the debate. Further, a patient may waive their right to professional secrecy by implication, and without intending to do so, by acting in a manner that does not respect the confidentiality of their records. By sanctioning the validity of implied waivers and implementing such a broad interpretation of relevance, the SCC may have opened the door in this case to access to medical records that contain very personal and private matters. This may result in embarrassment for the individuals whose medical records are required to be produced, and in a reduction of the number of claims involving psychological damages, as plaintiffs may be reluctant, particularly in the field of mental health issues, to have personal matters disclosed and their “dirty laundry” aired!