Reprehensible but lawful! Can Claimant’s record a medical examination in a personal injury case?
This question was considered in the recent case of Mustard -v- Flowers and Others (2019) in the High Court.
Master Davison has ruled that recordings of medical examinations, of the Defendant’s instructed medical experts, by the Claimant in the case were allowed under the law, despite describing the same as “reprehensible”.
The case was that of a road traffic accident where the Claimant had suffered a brain injury, the extent of which was being argued between the parties. The Claimant’s solicitor then advised the Claimant to record the medical appointments with the Defendant’s medical experts in the case. In some of the instances the Claimant informed the experts that they were being recorded but in two cases the recordings were done covertly and in another the expert asked for the recording to be stopped before clinical testing took place, despite the Claimant attempting to turn the recording device off but failing to do so.
The main issue surrounded whether the recording of all of the Defendant’s medical examinations were admissible as evidence in the case, with the recording of the appointment where the expert had requested the recording be stopped but the Claimant failed to stop the recording despite trying, being particularly contentious. Amongst other arguments the expert argued that if the testing and the material used were allowed to be made public in the trial it could breach the copyright of the company who provided the testing material, as well as putting the details of the testing into the public domain which could lead to false results in the future for someone undergoing the same testing who was trying to manipulate the results.
There were also arguments in relation to GDPR and Data Protection.
At least one of the experts also argued that they felt it had been discourteous and that their professionalism was being called into question.
The Claimant argued that recordings and observation were commonplace in clinical examinations and they could help to detect incompetence or malpractice in what is a heavily adversarial process.
Master Davison allowed the recordings in the case whether they had been obtained with or without the experts’ knowledge, including the accidental recording. Whilst Master Davison concluded that the Claimant’s actions lacked transparency and courtesy, and there were some factors which leant towards the recordings being excluded, he said that none of these factors outweighed the relevant and probative value of the recordings which goes towards the overriding objective in personal injury cases.
As a side note, Master Davison said that the Association of Personal Injury Lawyers (APIL) and the Forum of Insurance Lawyers (FOIL) should work together on a protocol for governing recordings in cases such as this.
This decision will likely lead to Claimant lawyers advising their clients to record all medical examinations in their case. If this advice is not given and it later turns out there are questions over what was and was not said in an examination, could the client have a justifiable complaint if they were never informed that they could record the examination?
Whilst on the moral standpoint lawyers may ask their client to ensure that the recordings are overt so the expert is aware of the recording, based on Master Davison’s decision, there is no duty for this to be the case and it may mean that the medical experts begin to have open dialogue with the injured person as to whether or not they are going to be recording the examination.
The simple fact however is that if everything that the medical expert is doing is in line with the procedure that they should be following, they should have no issue with the examination being recorded as their findings will not be called into question and, if anything, it provides more transparency to the parties. It does however raise issues over the difference in testing and practices between practitioners in the same field and which one is therefore more relevant where different routes have been followed which then leads to the questions of which evidence is the stronger.
What it does do however is open the door for Claimant’s to feel more comfortable that they will get the right outcome in, what is, a highly adversarial process where they feel the Defendants are against them and just trying to pay out as little as possible.
From a Claimant point of view, it is a welcome step to ensure fairness across an important aspect of the case.