Employee has to Give the Employer Access to the GP ‘s Medical Record

An employee had claimed compensation for injury from his employer after an industrial accident. The Court ordered the employee to make the GP’s medical record over the two-year period preceding the industrial accident available to the employer, because the employer needed these documents to provide evidence for his claim that the damage, the employee had claimed compensation for, had not been due to the industrial accident.

In June 2023, an employee, working at a company in the Port of Rotterdam, had become the victim of an industrial accident. The employee claimed that he had physical and psychological complaints due to the accident and that he suffered damage as a result.
He asked the Sub-district Court to declare that the employer was liable for this damage.
The employer, however, contested that the damage the employee allegedly suffered had been the result of this industrial accident. The employer wanted to know whether these complaints had not already existed before the accident took place, and therefore he asked the employee to give him access to the GP’s medical record from June 2021, which was two years before the date of the accident. When the employee refused to provide this access, the employer claimed that the employee would provide the GP's medical record to the Sub-district Court.

The Sub-district Court checked the legal requirements that apply to sentencing the other party to provide certain documents.
The first requirement is that the employer must have a legitimate interest in obtaining these documents. According to the Sub-district Court, the employer had this interest because the employer had to defend himself against a claim, based on employer liability, and because one of these defences concerned the causal link between the employee's complaints and the accident.
The second legal requirement is that it must concern certain documents which are available to the employee or which he/she has under custody. According to the Sub-district Court, it goes without saying that, as a patient, the employee can have access to the GP's medical record.
The third requirement in the law is that it must concern a legal relationship the claimant party is part of. Since the employee addressed the employer in the legal relationship he had with the employer under their employment contract, this requirement was also met.

When all these legal requirements are met, the party whom access to the documents is requested from, has to comply with the request, unless there are weighty reasons not to do so, or unless it can be assumed that “a sound administration of justice” will also be guaranteed without providing the documents. The Sub-district Court held the opinion that there were no weighty reasons to justify an exception. Since, in any case, the employer had to comply with the obligation to furnish the fact that there was no causal link between the accident and the employee's complaints, and since he might subsequently also have to provide evidence in this regard, the Sub-district Court assumed that sound administration of justice entailed that the employer should have access to the GP's medical record.
For that reason, the employee was ordered to provide the employer with the GP's medical record within one month.

It is not a rare occurrence that the positions of parties in a dispute are determined by the evidence position. Parties who believe they will not be able to provide sufficient evidence for their claims often refrain from proceedings, and parties who believe that the other party will not be able to provide evidence for their claims quite often believe that they have a strong position in proceedings. This attitude overlooks the fact that, under certain conditions, the law provides the possibility to oblige the other party to provide written documents required for the evidence. The most important condition is that these are clearly defined documents, deemed necessary for the proof. In general, requesting documents with the intention to search for something that might strengthen one's own position and weaken the position of the other party, the so-called "fishing expedition", is not permitted.
If there is reason to suspect that the other party may conceal the documents, it is even possible to first have the bailiff seize these documents, after which these documents, or copies thereof, can be retained into custody by the bailiff, pending an order to the other party to provide access to these documents. Such a seizure requires the court’s permission in advance. In such case, the party applying for the seizure has to make it sufficiently plausible that, without the seizure, the relevant documents may disappear and that the intended evidence cannot be provided without these documents. The other party will not be heard in advance about the request for seizure, so that the seizure can remain a surprise for the other party.
The obligation to provide certain documents also applies if these documents contain medical information. The court may decide that such access to documents containing medical information is reserved for an authorized lawyer or physician or for a representative who obtained specific authorization from the court to do so.
Violation of this confidentiality obligation is a criminal offense.