Patients have a legal right to access and request a copy of their medical records held by a physician or health facility and physicians must ensure patients have access to their medical records if requested.
Getting access to your medical records is often the first step in investigating personal injury and medical malpractice litigation and will help set the framework for the analysis of your case.
Why Are Records So Important In Personal Injury Cases?
Accessing your medical records is essential for the purposes of personal injury and medical malpractice litigation. In personal injury litigation, medical records are important for many reasons. They are used to:
- Provide proof of an injured person’s injuries
- Permit lawyers and medical experts to determine the cause of the injuries
- Rule out whether any injuries were caused and/or contributed to by a pre-existing medical condition
- Assess the injured person’s prognosis
- Determine the viability of a lawsuit
- Calculate the quantum of damages sustained by the injured person
Medical Malpractice – Can Records Prove It Was Negligence?
The medical record is the essential legal document in medical malpractice litigation. The medical record is the best evidence of any alleged medical negligence, which adversely affected the health outcomes of the patient. It is the record which permits a lawyer and medical experts to investigate and assess the quality of care provided and whether the health providers exercised reasonable care and met the standard of care.
The medical record also identifies which health care providers were involved in the patient’s treatment, at what health facility and when. In doing so, the medical record identifies the potential Defendants in a lawsuit, the applicable limitation period to commence a lawsuit and the particulars of negligence. Ultimately, the medical record is the evidence that allows an injured person to pursue a lawsuit and seek compensation for damages arising from medical negligence in a court of law.
Both personal injury and medical malpractice cases are likely to fail without production of the injured person’s medical records.
How Long Can You Access Your Records?
Ontario’s health privacy legislation and the College of Physicians and Surgeons of Ontario mandates that physicians in Ontario must retain original medical records which are legible, dated and document every patient encounter and all patient-related information in either English or French.
In the case of an adult patient, physicians must keep medical records for 10 years from the date of the last entry in the record. In the case of patients who are children, physicians must keep medical records until 10 years after the day on which the patient reached, or would have reached, the age of 18 years.
What If A Physician Retires?
Where a physician has stopped practicing medicine, the medical records must still be retained for the periods outlined above unless physical custody of the medical records has been transferred to another person who is legally authorized to retain them, such as a record storage company; or if each patient has been notified that the medical records will be destroyed two years after the notification and upon being advised that the patient may obtain the medical records or have the medical records transferred to another physician within the two year period.
Notwithstanding these requirements, the College of Physicians and Surgeons of Ontario recommends that medical records be retained for a minimum of 15 years.
How To Access Your Records
A patient can contact their physician directly to request access to their medical records. A patient’s request for access to his or her medical records should be made in writing to the physician and/or health facility and must provide enough information to allow the physician to identify and locate the medical record. For example, the patient’s health card number should be provided along with the date, time and place the health services were provided. However, physicians are encouraged to provide patients access to their medical records in the absence of formal written requests.
A physician has 30 calendar days to respond to a patient’s request for access. Before granting a patient access to their medical records, the physician must take reasonable steps to verify the individual’s identity.
Can Physicians Charge An Access Fee?
When granting access or providing a patient a copy of their medical record, a physician may charge a reasonable fee for making the medical record available. However, physicians are encouraged to consider the patient’s financial circumstances and their ability to pay when determining the appropriate fee.
Can A Physician Refuse Your Request?
Physicians may only refuse a patient’s request for access to their medical records in limited circumstances, including if:
- Access to the medical records are restricted due to legislation or caselaw preventing access;
- Access to the medical records may result in a risk of serious harm to a person’s treatment or recovery or serious bodily harm;
- The medical records were collected or created as part of an inspection, investigation or similar procedure and the resulting proceedings, appeals or processes have not yet been completed;
- Another law prohibits the disclosure of the medical records.
How To Complain If A Physician Refuses Access?
In the event that a physician refuses a patient access, in whole or in part, to his or her medical records, the physician must give the patient written notice of the refusal no later than 30 calendar days after receiving the request and must advise the patient of their right to file a complaint with the Information and Privacy Commissioner.
The complaint to the Information and Privacy Commissioner must be made in writing and must be filed within 6 months from the time the physician refused, or is deemed to refuse, the patient’s request for access to their medical records. Upon receipt of a complaint, the Commissioner can attempt to settle the complaint informally. If the complaint cannot be settled informally, the Commissioner has complete discretion to conduct a review of the complaint. In such circumstances, the Commissioner has broad powers, which include summoning individuals to appear and give evidence under oath, entering premises to review relevant records and making Orders for production of medical records.
Are A Deceased Person’s Records Still Accessible?
In certain circumstances, Ontario’s health privacy legislation also permits access to the medical records of a deceased individual. The deceased individual’s estate trustee, executor or the substitute decision-maker may request access to the deceased individual’s medical records in accordance with the process outlined above. A physician or health facility can only disclose the medical records of a deceased individual if the substitute decision-maker consents to the disclosure or as legally permitted or required by Ontario law.
If you or a loved one have been a victim of medical malpractice and/or personal injury, the lawyers at Neinstein LLP can help you access your records and investigate your potential case.