February 11, 2014

Kevin Gourlay

A decision from early 2013, Kostecki v. Li, 2013 BCSC 2451, was posted recently regarding the use of statements in clinical records.  Defence counsel had cross-examined the plaintiff on statements in clinical records she purportedly made to a neurologist and a physiotherapist.  The plaintiff denied making the statements and counsel didn’t call either the neurologist or the physiotherapist to prove that the statements were made.  Following the plaintiff’s closing, Justice Schultes raised the issue of what use he could make of those statements given that they hadn’t been proven (the answer being: none).  Because it was an oversight by counsel, Schultes allowed the evidence to be reopened so the defence could call those two treatment providers for that limited purpose.

Read the full decision in Kostecki v. Li, 2013 BCSC 2451

Regarding use of such statements generally, the Court relied on Cunningham v. Slubowski, 2003 BCSC 1854 (CanLII), 2003 BCSC 1854, at paras. 14 to 16:

[14]      The defendants may cross-examine the plaintiff on his prior statements recorded by Dr. Abelman in the clinical records. If the plaintiff admits that he made a particular statement to Dr. Abelman, and it is inconsistent with his testimony at trial, the statement can generally be used only to assess the plaintiff’s credibility. The statement is not admissible for its truth unless it constitutes an admission against the plaintiff’s interests. If it is an admission against interest, it is admissible for the truth of its content, depending on the jury’s assessment of it.

[15]      Also, if the plaintiff admits he made the prior statement to Dr. Abelman and he adopts it in his testimony, that prior statement becomes admissible for the truth of its content, depending upon the jury’s assessment of it.

[16]      Of course, if the plaintiff denies having made the prior statement, a pre-requisite to any of the above results is proof that he in fact made the statement to Dr. Abelman. This can be established through the testimony of Dr. Abelman who apparently recorded the statement when the plaintiff made it.

[Emphasis added.]

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