The relationship between past injuries and medical recovery in a prior accident and present accident is not a novel concept. It is often pleaded and arises routinely in personal injury actions.
A recent decision by the Court of King's Bench reaffirms the principles of relevancy and privilege for prior medicolegal reports for actions that have resolved. In the case of Fedotkin v. Odobzinski, 2023 AKKB 632, the Plaintiff resisted the disclosure of her previous medicolegal reports on the grounds that her prior injuries had been fully resolved, rendering them irrelevant. Additionally, the Plaintiff asserted solicitor-client privilege and litigation privilege, seeking protection for the contents of these reports.
The Court noted that the relationship between overlapping injuries and prior reports is clearly relevant and is raised often by Defendants. In this instance, overlapping injuries from both the prior and present accidents were undisputed.
The Court dismissed privilege claims on the previous medicolegal reports, distinguishing between solicitor-client and litigation privilege. Solicitor-client privilege covers communications between counsel and the client, along with the solicitor's working materials. On the other hand, litigation privilege extends to communications with third parties, ceasing when litigation concludes—an important distinction from solicitor-client privilege, which persists post-litigation.
In the circumstances, the Plaintiff took no steps to review the prior reports for relevancy and privilege and had lost its ability to do so at the time of the application. The Court found that any litigation privilege expired after the resolution of the prior claim.
Takeaways:
If the Plaintiff advances overlapping injuries from prior accidents, the existence of prior medicolegal reports can be highly relevant and material to the present claim. The fact that information was subject to litigation privilege in a previous case does not necessarily mean that it will continue to be protected in a subsequent case. The Court may order a party to answer undertakings respecting prior medicolegal reports if they are deemed relevant and material to the case.
If counsels wish to assert privilege for prior medicolegal reports, it is crucial to take appropriate steps to locate, review, and potentially redact the materials for potential privilege or relevancy, as failure to do so may result in the Court precluding the party from later attempting such efforts.
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