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Recording appointments with medical experts: Is the evidence admissible? - Paul Sankey, Enable Law

19/11/19. In a recent case[1] Master Davison considered whether covert recordings of appointments with medical experts should be admitted as evidence. The recordings were obtained improperly or unfairly but nevertheless had probative value.

The Claim

In January 2014 a 34 year old woman was injured in a road traffic accident. Her stationary car was struck from behind by a vehicle driven by the first defendant. She had a complex medical history. She alleged that she suffered a sub-arachnoid brain haemorrhage and a diffuse axonal brain injury from the accident and was left with cognitive and other deficits. This was a subtle brain injury. The experts called by both sides were divided. Their views depended to some extent on whether the court found that the speed of impact was medium (as the claimant said) or minor (as the defendant said).

Medico-legal examinations: the recordings

The claim was defended in effect by the third defendant (referred to here as 'the defendant'). It arranged for the claimant to be examined by various experts. She was advised by her solicitor to record the consultations on a digital device and the defendant was advised. When seeing 2 experts she made recordings covertly. When seeing a neuropsychologist, Dr Torrens, she asked to make a recording. Dr Torrens agreed that she could record the examination but not the tests. On her evidence she tried to turn off her device but failed and inadvertently recorded the tests. (In the context of this application the judge – who only had her written evidence - accepted her account.) 3 other experts agreed to her recording the appointments and made their own recordings.

The claimant said that she wanted to record the meetings as an aide memoire and to have evidence if necessary should there be any misunderstanding of what was said. Her solicitor said he was concerned that clients with subtle brain injuries could have problems with memory and fatigue. They may answer questions clumsily and their answers were subject to misinterpretation.

Those experts subject to covert recordings complained strongly and felt that the Claimant's actions lacked honesty, transparency and courtesy. Dr Torrens also had concerns that recording the testing breached proprietary rights in the tests putting them in the public domain...

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