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To disclose or not to disclose, that is the question!

3rd Jun 2016

A request to disclose a file note of a conversation held between a lawyer and a medical expert regarding a liability report for a medical negligence claim in Queensland remains a topical issue.

For a Notice of Claim to be correctly served on a respondent regarding a medical incident (other than a claim relating to a failure to warn), a plaintiff is required to obtain under s9A of the Personal Injuries Proceedings Act 2002, (Qld) (PIPA):

‘a written report from a medical specialist, competent to assess the medical incident alleged to have given rise to the personal injury, stating, in the medial specialist’s opinion:

1. That there was a failure to meet an appropriate standard of care in providing medical services;
2. The reasons justifying the opinion; and
3. That as result of the failure, the claimant suffered personal injury.’

If there is no report, the Notice of Claim Part 1 is non-compliant and the claim cannot proceed.

It is common in practice for a medical negligence lawyer to have a teleconference with a relevant medical specialist to discuss the prospects of success of their client’s claim prior to obtaining a written report. If the opinion is favourable, a report to confirm this opinion will be requested.  If the opinion is not favourable, then no report is obtained and the claim comes to an end.

Usually a lawyer will make a telephone file note noting a conversation held with clients and/or third parties.  Obviously file notes containing clients’ instructions are privileged, but what about the file notes with the third parties and, in particular, medical experts?  Are these documents also privileged or subject to the rules of disclosure contained in PIPA?

Both parties have disclosure obligations under Division 1 of PIPA and in particular ss22 and 27.  Section 30(1) states that neither party is obliged to disclose documents protected by legal professional privilege.  However, s30(1) is subject to s30(2) which states that ‘investigate reports’ ‘medical reports’ and ‘reports relevant to the claimant’s rehabilitation’ are required to be disclosed to the other party, even if they are considered to be privileged.  It is considered an offence under s31 not to disclose these documents.

In Watkins v State of Queensland,[1] the state’s lawyer had a telephone conversation with a medical expert which lasted approximately 30 minutes.  In his report, the expert listed the documents he relied upon in preparing his report, which included the file note between himself and state’s lawyer.   Watkins’ lawyer requested a copy of this file note and the state refused, stating that it was privileged. 

The state argued that if a file note fell under the description of ‘reports and other documentary material’ under s27(1)(a)(i) PIPA it may discourage lawyers from making file notes[2] –   

Jerrad J,A, stated that a note which recorded information regarding the claim:

‘falls within the class of documents which the State is obliged to give the Claimant under s27(1) of PIPA and the legislation makes legal professional privilege in such documents irrelevant to the obligation to disclose them.’[3]  

Keane J,A, in allowing the disclosure of the file note, went on to explain that if the document to which the file note related was not privileged, then the file note was not privileged either.[4]  The expert report in Watkins was obtained for the purposes of s20 and was therefore not privileged.  

It appears that the state’s argument in Watkins may in fact be true and that lawyers perhaps have been discouraged from making such file notes.

While there is no obligation on a lawyer to make a file note of a conversation with a medical expert, is it ethical for a lawyer not to make a recording of a conversion in circumstances where the instructions to the specialist are for a verbal opinion only?

In Queensland, you cannot go ‘doctor shopping’ to find a medical expert who supports your client’s claim.  So if you don’t record the telephone conversation, does this mean you can approach another specialist and seek a second opinion on the basis that there is no record of the first opinion having been sought?  On the other hand, a lawyer could record the details of that conversation in a letter to their client, thereby making the contents privileged. 

If this is in fact occurring in practice, is this not a breach of our fundamental duty not to mislead the court as well as a breach of our duty to act honestly, professionally and courteously?   

Tags: Disclosure of Conversations Medical Experts Lawyers Joanne Baker