Ms Swirski was injured in a motor vehicle event and subsequently developed epi颅leptic seizures. She was assessed by four neurologists who opined that the seizures resulted from a brain injury. After a times of time some of the neurologists changed their opinion and were of the view that the seizures were the result of a conversion disorder a psychiatric condition arising from the accident.聽

Ms Swirski鈥檚 lawyers did not rely on the reports of the neurologists or put them forward to the court like experts. Instead they gave notice of their intent to call Ms Swirski鈥檚 family doctor like an expert witness at trial. Counsel for the defence wished to interview the four neurologists and the thing was placed before the court in Swirski v. Hachey.[1]聽

Mr Justice Wilkinson of the British Columbia Supreme Court held that the defendant鈥檚 advocate was at liberty to discuss medical matters with Ms Swirski鈥檚 treating physicians in the absence of Ms Swirski and her counsel. This ruling did not force Ms Swirski鈥檚 treating physicians to receive part in such discussions except allowed them to participate in such a meeting subject to conditions set by them. In other words the Swirski decision allowed for informal discussions between defence advocate and the plaintiff鈥檚 treating physicians if the physicians were willing to participate.

More recently in MacEachern v. Rennie Mr Justice Ehrcke affirmed the request of the Swirski decision.[2] In this particular case a surgeon (Dr D.) was treating the plaintiff Ms MacEachern. Her lawyer took the position that like a treating surgeon Dr D. owed Ms MacEachern a duty of confidentiality not to divulge her personal information without her consent.聽

In fact Dr D. met with defence advocate even behind receiving a letter from Ms MacEachern鈥檚 lawyers advising that their client did not wish the meeting to move on if they were not present. Her lawyers were of the opinion that Dr D. breached his duty of confidentiality to his patient when he spoke with advocate for the defendants in their absence.

Mr Justice Ehrcke ruled otherwise: 鈥淚 have found that there was no impropriety in the meeting between Dr D. and advocate for the defendants.鈥?/p>

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