Can't make this s**t up

[ciroccoj]

Grossman v. Toronto General Hospital
(1983), 146 DLR (3d) 280 (Ont. HC)

Reid J: The action arises out of the death of Howard Grossman who is claimed to have been lost while a patient in the Toronto General Hospital ("The Hospital"). It is alleged that his body was discovered after 12 days in an air-duct shaft in the hospital.

The defence entered by the Hospital for itself and its staff amounts to a general traverse. Not even the death was directly admitted.

That document gave a hint of what was in store for the plaintiffs. The Hospital's affidavit on production revealed only one thing the Hospital had no objection to producing: the deceased's hospital record. That was the only entry made in the first part of the first schedule of the form (Form 23) required by the rules of practice.

Defendant's position is essentially this: plaintiffs have failed to establish that any documents exist that should be produced other than the deceased's medical record... When I expressed surprise that a 12-day search for a missing patient in a hospital would not have produced one scrap of paper relevant to the issues in this lawsuit Mrs. Farrer replied that any such piece of paper would be privileged, the Hospital having retained solicitors at a very early point.




... Reid then goes on to explain in detail why it is that the rules of discovery aren't there to make sure nobody gets to discover anything. The Hospital lost, by the way.

Comments

[snarkhunter.livejournal.com]

WHAT?!

I...they...how...

(And that, in a nutshell, is what I said while reading this post.)

IN AN AIRSHAFT?

[ciroccoj.livejournal.com]

WHAT?!

I...they...how...
You know, that's remarkably similar to what I said. Except when I read the first sentence, "...Grossman who is claimed to have been lost while a patient in the Toronto General Hospital," I snorked and thought to myself, "Yo, Your Honour, no euphemisms, please - the guy died. Say it like that and it sounds like they actually lost - oh. Oh my god - WHAT?! I... they... how..."

Happily, the judge reamed out the hospital and their counsel thoroughly. Someday I want to be a judge, mostly for the license to snark on the record.

[bandgeek.livejournal.com]

Wow.

[lherelenfeline.livejournal.com]

the one question i have is why didnt the hospital store the paperwork with a solicitor not representing them on the case? This way the rules of discovery would have been followed and nothing would have been discovered as the priviledge between the cousel not representing the hospital and the hospital would have allowed them not to present it to either the plaintiff or their own defence counsel ( assuming it wasn't instrumental to the defence)?

Unless the rules in Canada are different then the Us on this?

[ciroccoj.livejournal.com]

Unless the rules in Canada are different then the Us on this?
Yeah, I think so - though I'm not totally familiar with the rules of discovery. Or Canada, for that matter - which is why I'm taking CivPro ;)

From my understanding of the rules, the parties (in a civil case) are both obligated to hand over almost everything that could possibly have anything to do with the case, whether it's beneficial to them or not. And lawyers have to tell their clients that, and if they suspect their clients are holding back relevant evidence, they are supposed to excuse themselves from the case. Solicitor-client priviledge only applies to discussion between the client and lawyers, or work product from the case (eg reports from experts hired in order to build up the case). It does not apply to things like records of where a patient was and when, who looked for them, who was on duty the night the patient disappeared, etc etc. It only applies to what the client asked the lawyer (about who was on duty, where they looked, etc) and what the lawyer said back.

Because it can sometimes be difficult to determine what should and shouldn't be privileged, at discovery parties are allowed to have a schedule of "Things We Have But Will Not Show You Because They're Protected", which includes only a list, no documents. The other party can look at the list, and if they believe they need something that's on the list, they can make a motion and the judge will decide whether the information is protected, how protected it is, and how necessary it could be to the other side, and balance out the interests and come to a conclusion.

So, it's not kosher to just say "Those documents are protected because we gave them to our lawyer."

At least, I hope that's the way it is, or I'm in serious trouble for my exam in three weeks ;)

[lherelenfeline.livejournal.com]

"and if they suspect their clients are holding back relevant evidence, they are supposed to excuse themselves from the case. Solicitor-client priviledge only applies to discussion between the client and lawyers, or work product from the case (eg reports from experts hired in order to build up the case). It does not apply to things like records of where a patient was and when, who looked for them, who was on duty the night the patient disappeared, etc etc. "


Ah, and therein lies the difference. Over here, any record kept with a lawyer at the time of the filing are protected by priveledge. Nothing may leave the lawyers property ( office , warehouse , sorage room) unless the client waives the priviledge, and so a lot of businesses over here routinely deposit paperwork with their legal staff in anticipation of suits. It usually requires a subpoena to induce an evidentiary review of stuff that's claimed privildged but that only happens if the plaintiff knows exactly what he's looking for.

On another note.... an airshaft? a bloody airshaft?

[ciroccoj.livejournal.com]

Love the icon, BTW :)

[lherelenfeline.livejournal.com]

Thankee, that's my ' legal mode icon'