Divine Inspiration Trading 205 (Pty) Ltd v Gordon and Others (22455_2019) [2021] ZAWCHC 38; 2021 (4) SA 206 (WCC) (3 March 2021)

The case involves an application by Divine Inspiration Trading 205 (Pty) Ltd and The Alphen Farm Estate (Pty) Ltd (applicants) against Katherine Gordon, Dr. Katherine Lewis, and Dr. Giselle Rausch (respondents). The applicants seek an order directing the second and third respondents, who are medical practitioners, to provide the applicants and the court with all medical records, reports, and x-rays related to the first respondent, Katherine Gordon. This request is made in the context of ongoing legal proceedings where Katherine Gordon is claiming damages from the applicants due to injuries sustained during an accident on the applicants' premises in 2015.

The second and third respondents, as medical practitioners, are bound by the National Health Act (NHA) not to disclose medical information without the patient's consent unless required by a court order or law. The first respondent opposes the disclosure of her medical records, citing irrelevance to the dispute, infringement of her privacy and dignity rights, and violation of the Protection of Personal Information Act (POPI).

The main action between the parties was settled in 2017, with the applicants agreeing to pay a percentage of the proven damages to the first respondent. However, the first respondent later amended her claim for loss of income significantly. The applicants engaged an expert to assess the first respondent's employment prospects, who requested access to her complete medical history from the second and third respondents.

Efforts to obtain the medical records through subpoenas were unsuccessful as the second and third respondents cited legal and ethical obligations for non-disclosure. The applicants then sought discovery directly from the first respondent, who claimed not to possess the records. Subsequently, the present application was brought before the court to compel the disclosure of the medical records.

The court considered the legal framework under the NHA, the Health Professions Act, and POPI regarding the disclosure of medical records. It also assessed the relevance of the medical records to the first respondent's earning capacity assessment and the impact of pre-existing medical conditions on the case. The court ultimately ordered the second and third respondents to provide the medical records within a specified timeframe and ruled that the first respondent should bear the costs of the application.

The core legal principle underlying the decision is that in the context of litigation, where medical records are sought for the purpose of assessing a party's loss of earning capacity, and where the law requires disclosure, such as through a subpoena issued in accordance with the rules of court, the duty of confidentiality imposed by legislation and ethical rules must yield to the requirements of the legal process. The court emphasised the importance of full disclosure of relevant documents for the proper administration of justice, even if such disclosure may impinge on privacy rights, as long as the information is used solely for the litigation and not for any other purpose.

The court relied on the case of PFE International Inc (BVI) and Others v Industrial Development Corporation of South Africa Ltd 2012 (2) SA 269 (SCA) in its reasoning process. This case dealt with the interpretation of section 7 of the Promotion of Access to Information Act and the application of an ouster clause in cases where the law provides for the production of or access to records. The court in this case held that the rules of court relating to subpoenas are laws that provide for the production of or access to records, including records held by persons who are not parties to the litigation.