Hay et al. v. University of Alberta Hospital and Sterns et al., 1990 CanLII 2619 (AB QB)

• Judge: Picard, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 18, 1990
• Jurisdiction: Alberta
• Citations: 1990 CanLII 2619 (AB QB);73 Alta LR (2d) 391;[1990] AJ No 333 (QL);69 DLR (4th) 755;[1990] 5 WWR 78;40 CPC (2d) 176;(1990), 105 A.R. 276 (QB);105 AR 276

Hay v. Alta. Univ. (1990), 105 A.R. 276 (QB)

MLB headnote and full text

John Richard Hay, Sheila Hay and Michelle Hay, an infant by her next friend and father John Richard Hay (plaintiffs) v. University of Alberta Hospital, Larry P. Sterns, John Doe(s) and Nancy Doe(s)(defendants)

(Action No. 8503 01096)

Indexed As: Hay et al. v. University of Alberta Hospital and Sterns et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Picard, J.

April 18, 1990.

Summary:

The plaintiff brought a negligence action for damages against the surgeon who performed heart surgery on him. The surgeon applied for an order permitting his counsel to interview three doctors who rendered treatment after the operation. The plaintiff did not consent. The College of Physicians and Surgeons opined that such interviews were improper absent the patient's consent or a court order.

The Alberta Court of Queen's Bench stated that when a patient commenced an action for damages placing his health in issue any right to confidentiality was waived. The treating doctors then became like any other witnesses and, as there was no property in a witness, they could be interviewed by the defence without the patient's consent or a court order.

Evidence - Topic 4007

Witnesses - Pretrial interviews - [See Medicine - Topic 3092].

Medicine - Topic 3092

Relation with patient - Charts and records - Confidentiality - Waiver of - The Alberta Court of Queen's Bench stated that when a patient commenced an action for damages placing his health in issue any right to confidentiality between himself and his doctor was waived - Accordingly, defence counsel was entitled to interview any treating doctors without the patient's consent or a court order, just as with any other witness - There was no property in a witness, but the witness may refuse to be interviewed.

Cases Noticed:

Doe v. Eli Lilly & Co. (1983), 99 F.R.D. 126 (U.S. Dist. Ct.), refd to. [para. 16].

Lazorick v. Brown (1984), 195 N.J. Super. 444; 480 A. 2d 223 (App. Div.), refd to. [para. 17].

Cook v. Washuta (1985), 11 O.A.C. 171; 52 O.R.(2d) 289 (C.A.), refd to. [para. 18].

Ansley v. Ansley, [1973] 5 W.W.R. 181 (B.C.S.C.), refd to. [para. 21].

Authors and Works Noticed:

Picard, Legal Liability of Doctors and Hospitals in Canada (2nd Ed. 1984), generally [para. 23].

Wigmore on Evidence (3rd Ed. 1961), vol. 8, p. 855, para. 2389 [para. 22].

Williston and Rolls, The Conduct of An Action (1982), p. 2 [para. 13].

Counsel:

G.H. Cornfield (Milner & Steer), for the plaintiffs;

D.T. Gallagher (Bennett Jones Verchere), for the defendant, Larry P. Sterns;

C.A. Kent (Field & Field), for the defendant, University of Alberta Hospital;

D.J. Boyer, Q.C. (Bryan and Wilson), for the intervenor, the College of Physicians and Surgeons of Alberta.

This application was heard before Picard, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 18, 1990.