Court of Appeal: Hospital to obtain communications between plaintiff and estranged father in PI action for negligent dissemination of medical records
The Court of Appeal has ruled that a hospital is entitled to discovery of certain communications between a plaintiff and her estranged father in a personal injuries action for the negligent dissemination of the plaintiff’s medical records. The plaintiff had expressly told the hospital to not reveal her medical condition to her father, but this occurred anyway.
About this case:
- Citation: IECA 211
- Court:Court of Appeal
- Judge:Mr Justice Maurice Collins
Delivering judgment in the case, Mr Justice Maurice Collins held that there may be some scenarios in which private communications between family members would be confidential and not discoverable, but the documents sought in this case were central to the action. Accordingly, the interests of justice required the court to order the discovery of the communications.
In October 2017, the plaintiff underwent testing for a genetic condition that ran in her family in Children’s Health Ireland at Crumlin. She was 18 at the time. When attending the hospital, the plaintiff claimed that she directly requested that her father would not be notified about the results. She claimed to have been assured that the results would remain confidential.
Unfortunately, the tests showed that the plaintiff was positive for the genetic condition. Further, as a result of admitted negligence by the hospital, the results were sent to both of the plaintiff’s parents. The plaintiff only learned that her diagnosis had been communicated to her parents after her mother contacted her.
In December 2019, the plaintiff issued personal injuries proceedings against the hospital, alleging that her father had reacted very badly when he had previously heard about the sister’s diagnosis and that the plaintiff was distressed to find out that he knew about her diagnosis. The plaintiff claimed to be devastated and feared an adverse reaction from her father. Relatives from her father’s family had questioned her about the diagnosis, which was embarrassing and humiliating, while the unauthorised disclosure continued to “prey on her mind,” the plaintiff claimed.
Further, the plaintiff provided particulars of her injuries which claimed that she had negative interactions with her father following the disclosure and that her relationship with him was further damaged due to his attitude. It was claimed that the plaintiff had been diagnosed with an adjustment disorder arising from the events.
The hospital’s defence included a requirement that the plaintiff prove the particulars and circumstances of the alleged wrong and that she suffered personal injury or material damage from the admitted breach.
Subsequently, an application for discovery was made by the hospital which sought, inter alia, all records of communications between the plaintiff and her father between June 2017 and June 2018. These records included any texts, emails or instant messages with her father. The High Court granted this category of documents and the plaintiff appealed the decision to the Court of Appeal.
The plaintiff claimed that the communications were private and were not relevant or necessary where the hospital had admitted that it had wrongfully disclosed the diagnosis to the father. It was said that the fear of an adverse reaction was a “tangential matter” which did not go to the plaintiff’s entitlement to recover damages. Further, the communications were highly sensitive and were prima facie confidential, the plaintiff said.
The hospital claimed that it wished to test the plaintiff’s claim that she had been exposed to a particular situation with her father as a result of the disclosure. The hospital also submitted that the relationship with the father was central to the entire case.
Court of Appeal
Mr Justice Collins began by outlining the standard of review in the appeal. Citing Ryan v. Dengrove DAC  IECA 155, it was noted that an appellate court should not disturb a High Court decision on discovery unless it was outside the range of decisions which were reasonably open to the court. Errors of assessment as well as errors of principle could justify interference by an appellate court.
Applying the well-established test of relevance and necessity, the court began by stating that the documents were manifestly relevant to the issue of the plaintiff’s relationship with her father. It was not a tangential matter but was a critical part of the claim for damages made against the hospital. On her case, the reaction of her father significantly aggravated her adjustment disorder, the court observed.
The hospital’s defence specified that it required proof of the plaintiff’s relationship with her father and the adverse impact that the disclosure had on that relationship, as well as her health resulting from the disclosure. As such, these aspects of the plaintiff’s claim were contested and accordingly, it was not correct to suggest that the admissions from the hospital rendered the communications irrelevant.
Turning to the issue of necessity, the court noted that there may be circumstances in which relevant documents would not be discovered. This included situations where discovery included confidential material (see Ryan v. Dengrove DAC; Word Perfect Translation Services Limited v Minister for Public Expenditure and Reform  IESC 56).
It was held that family members did not have to enter into a confidentiality agreement to have a reasonable expectation that private communications would not be disclosed and discovery could also engage constitutional rights to privacy and family life. While these protections were not unqualified, the courts should give weight to the nature of the communications when making a decision.
It was held that the competing interests in the discovery of the documents had to be weighed against each other and that “a balance has to be struck between the likely materiality of any given document to the issues likely to arise in the proceedings and the degree of confidentiality attaching to it,” (Ryan v. Dengrove DAC).
In the present case, the refusal of discovery would give rise to a real risk of unfairness to the hospital since the communications were highly relevant to the proceedings. The interests of justice therefore required discovery to be ordered. Further, the court noted that it was the plaintiff who brought her relationship with her father in issue and by implication waived the rights of privacy which she might otherwise enjoy (see McGrory v. ESB  IESC 45).
It was also relevant that there was no evidence of the precise nature of the communications with the father put forward by the plaintiff, the court said. As such, no specific or sensitive information was actually identified by the plaintiff.
However, the court also imposed restrictions on the circulation and use of the discovery, which included that only one hard copy of the material should be provided to the State Claims Agency, that no copies could be made, that expert witnesses may not retain the material and that all material would be returned on the determination of the proceedings.
Accordingly, the court dismissed the plaintiff’s appeal and affirmed the order for discovery. On the issue of costs, it was noted that the High Court order had been varied by the restrictions imposed by the Court of Appeal, but that the plaintiff had not proposed the variation. Since the plaintiff had lost, the provision view was that she was liable for the costs of the appeal.
AB v. Children’s Health Ireland (CHI) at Crumlin  IECA 211