The High Court refused a defendant’s application for wider medical records in a medical negligence action, finding no case-specific basis to conclude that further records existed or that the records sought were necessary for a fair trial. It directed the plaintiff to swear an affidavit clarifying how many times she attended a psychotherapist. The trial was listed to begin on 26 October 2022.
The plaintiff alleges that dermatologist Michelle Murphy failed over time to diagnose a lesion on her cheek, delaying treatment and causing her to undergo more invasive surgery in August 2015. She says the surgery left a large, intermittently itchy and painful facial scar. The defendant denied the allegations. Those claims were not decided in this discovery motion.
The defendant sought GP, dermatology and plastic surgery records from August 2015, along with counselling, psychology and psychiatry records dating from 2010. The application was issued on 14 September 2022 and heard five days later. The defendant relied in part on a psychiatrist’s report, which said that earlier GP records were needed to assess whether any alleged psychiatric symptoms might have other causes.
The court noted that the plaintiff had already provided records from two specialists in February 2019 and a GP record and psychotherapist note in December 2020. The GP page contained extensive redactions that the plaintiff said concerned irrelevant entries. The judge criticised the unexplained redactions, but said the defendant had waited more than a year and a half to challenge them and would, in the circumstances, have to rely on the plaintiff’s assurance that the redacted entries were irrelevant.
The judge found that the defendant had not sought particulars of other relevant medical history before the late application, and that the psychiatrist had not examined the plaintiff or identified a pre-existing condition. The report’s reasoning was general rather than specific to her case. The defendant’s lawyer accepted there was no other evidential indicator that the plaintiff had relevant psychological or psychiatric complaints before August 2015. The court also found no reason to infer that additional dermatology or plastic surgery records existed.
The judge refused the application in all respects except for the affidavit direction. The plaintiff must explain the error behind inconsistent figures for her attendances with the psychotherapist and confirm the correct number. The parties were invited to agree a deadline and notify the registrar; if they could not agree, either could seek directions. The judge proposed that the plaintiff receive the costs of the motion, subject to any disagreement being notified within 14 days.