Fitzgerald v Munro - [1998] VSC 30

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 7933 of 1997

MICHELE LOUISE FITZGERALD (BY HER	Plaintiff
LITIGATION GUARDIAN GAYE JACOBSEN)
v.
JOHN MUNRO AND OTHERS	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 AUGUST 1998
DATE OF JUDGMENT:	17 AUGUST 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 30

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CATCHWORDS:

Production of plaintiff's medical records pursuant to subpoena - Inspection of them by other parties - Privilege - Evidence Act 1958, s.28(2) - Health Services Act 1988, s.141(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J. Riordan	Maurice Blackburn & Co.
For the Defendants	M. Richardson	Blake Dawson Waldron

HIS HONOUR:

This action is one in which the plaintiff seeks to recover damages from two medical practitioners and a hospital for negligence.
According to the plaintiff's statement of claim, the firstnamed defendant is a specialist psychiatrist and the second named defendant a nephrologist. Between 1989 and 1994 the firstnamed defendant treated the plaintiff for severe depression. On 21 January 1994, and on the referral of the firstnamed defendant, the plaintiff was admitted to the Knox Private Hospital where she remained an in-patient until 27 February 1994. Whilst at the hospital the plaintiff was treated by the scondnamed defendant.
The plaintiff alleges that as a consequence of the negligence of the first and secondnamed defendants, and the negligence of the staff at the hospital, she suffered generalised diffuse brain injury whilst an in-patient at the hospital which has caused her significant permanent disability.
In her affidavit of documents filed in the proceeding the plaintiff has discovered not only the medical records of the Knox Private Hospital relating to her treatment but also the medical records of St. Vincent's Hospital relating to the treatment she received at that hospital between October 1975 and October 1995. The plaintiff claims privilege in respect of both sets of records.
Whilst the application before me only relates to the St. Vincent's Hospital medical records I cannot but observe that it would seem to me to be difficult for the plaintiff to maintain any claim of privilege in respect of the Knox Private Hospital records. In that regard I think it is strongly arguable that having chosen to sue the Knox Private Hospital and the two specialists who treated her whilst she was an in- patient at the hospital, the plaintiff has waived any claim to privilege. However, as I have pointed out, that matter was not debated before me and it is unnecessary therefore that I make any ruling concerning it.
Following delivery of the plaintiff's affidavit of documents thereby disclosing to the defendants the fact that the plaintiff had received treatment at St. Vincent's Hospital between the dates in question, the firstnamed defendant subpoenaed the Registrar of St. Vincent's Hospital to produce to the Court the complete hospital records relating to the plaintiff for the period from 1 February 1994 to 1 July 1998.
In due course the Registrar complied with the subpoena and produced the records to the Prothonotary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fitzgerald v Munro

Details

AGLC: Fitzgerald v Munro [1998] VSC 30
Case: [1998] VSC 30
Decision Date: 17 AUGUST 1998

CaseChat Overview and Summary

The case of Fitzgerald versus Munro was heard in the Supreme Court of Victoria. The plaintiff, Fitzgerald, sought the production of their medical records under a subpoena issued by the defendant, Munro. The primary dispute centred on the legality of third parties inspecting these records and whether they were subject to privilege. The Health Services Act 1988 and the Evidence Act 1958 were the primary statutes in question, with particular attention given to sections 28(2) and 141(2).

The court was required to determine whether the inspection of the plaintiff's medical records by the defendant, as per the subpoena, was permissible under the law. A key issue was whether the statutory protections provided by sections 28(2) of the Evidence Act and 141(2) of the Health Services Act could be overridden by the subpoena. Additionally, the court needed to clarify the extent to which privilege applied to medical records in this context and how it might affect the disclosure process.

The Supreme Court found that the statutory provisions did not explicitly prohibit the inspection of medical records by other parties once they were produced in response to a subpoena. The court held that while the statutes provided some level of confidentiality, they did not extend to preventing the inspection of the records once they were lawfully obtained. Consequently, the subpoena's requirement for the production of the records was upheld, subject to the plaintiff's right to seek a protective order to manage any concerns about privacy or confidentiality.

The court ordered that the medical records be produced as per the subpoena, with an invitation for the plaintiff to apply for a protective order if necessary to address any privacy or confidentiality issues arising from the inspection of the records.

Orders