If you believe that you or a loved one suffered harm as a result of medical malpractice, your medical records will be needed to investigate whether you have a viable claim or not. In Ontario, under the Personal Health Information Protection Act (“PHIPA”), you have the right to request access to your medical records.
What Are Medical Records?
According to the College of Physicians and Surgeons of Ontario (“CPSO”), the medical record is a “… is a tool that supports each encounter patients have with the health professionals involved in their care. It allows physicians to track their patients’ medical history and identify problems or patterns that may help determine the course of health care. The goal of the medical record is to “tell the story” of the patient’s health care journey. Medical records can take the form of a paper or electronic record.“
understandable to health care professionals reading the record, including avoiding the use of abbreviations that are known to have more than one meaning in a clinical setting or that are not commonly used or understood;
accurate;
complete and comprehensive, containing:
all relevant information;
information that conveys the patient’s health status and concerns;
any pertinent details that may be useful to the physician or future health care professionals who may see the patient or review the medical record; and
documentation that supports the treatment or procedure provided (i.e., rationale for the treatment or procedure is evident in the record);
unique to each patient encounter (e.g., refraining from inappropriate use of copy and paste);
identifiable, containing a signature or audit trail that identifies the author;
written in either English or French; and
organized in a chronological and systematic manner.
Your medical record may have important information beyond handwritten notes, consultation reports and laboratory results. The following additional information is sometimes required to investigate a medical malpractice claim and may not be disclosed with your medical record unless specifically requested:
diagnostic and interventional radiological imaging (x-ray, ultrasound, CT, MRI, etc.);
electronic fetal heart monitoring records; and
anatomical pathology slides and images (may need to be transferred directly from pathologist to pathologist).
Please also know that if you are specifically concerned about medical malpractice arising from the birth of your child, the child will have a completely separate medical record from their mother created at the time of their birth.
How Long Are My Medical Records Kept?
Section 19(1) of the Medicine Act, General Regulation requires medical records to be retained for a minimum of 10 years from the date of the last entry in the record for adult patients and 10 years after the day on which the patient reached or would have reached 18 years of age, for patients who are children.
How Do I Get My Medical Records?
There is no single repository of medical records for all Ontarians. At least not as of yet. The increased use of electronic medical records (“EMR”) in healthcare over recent years has significantly improved the sharing of information between providers. However, if a patient wants all of their medical records, they will have to make an individual request to each custodian that holds them.
Request to Access Personal Health Information Form
This means that in order to collect all you medical records you must make specific requests to each hospital, doctor’s office, clinic, pharmacy, etc. that you attended. If you have a complex medical history, this can be time consuming and challenging.
In some cases, you may have forgotten the names of certain doctors you saw, or perhaps tragically, a loved-one may have passed and you simply do not know their complete medical history.
In these circumstances, you may request a Personal Claims History from the Ontario Health Insurance Plan (“OHIP”). This will provide a printout of all health professions that billed OHIP for medical care provided to you. The Ministry of Health has recently made making requests for Personal Claims Histories easier and electronic requests can be made here.
Assuming you know where to request your records, the best approach is to contact the custodian directly and ask what their process is for disclosure.
Yes, you will have to pay to obtain a copy of your medical records. The cost will vary from provider to provider. It is recommended where possible to obtain an electronic copy of your records to reduce potential additional photocopying charges. Furthermore, most medical malpractice lawyers prefer receiving and reviewing electronic medical records.
If you believe you are being charged too much for your medical records, you may make a complaint to the IPC here.
How Long Until I Get My Medical Records?
Every provider of medical records is different. You may obtain a copy of your records within a week, or it may take months. It should not take more than 30 – 60 days in most circumstances so if your request has still not been fulfilled within that time frame, you should follow up.
How Do I Get Medical Records for a Child?
When it comes to obtaining the medical records of a child, the following individuals are authorized to make a request under PHIPA:
the individual (16 years old or older);
a person authorized by the individual;
if the individual is under 16 years old, a parent, a children’s aid society, or other person that is lawfully entitled to consent in the place of a parent; or
if the individual is incapable, a person authorized to consent on their behalf.
How Do I Get Medical Records for a Deceased Person?
When a person dies, the estate trustee becomes the substitute decision-maker for the deceased individual. If the estate does not have an estate trustee, then the person who has assumed responsibility for the administration of the deceased’s estate will be the substitute decision-maker.
In many cases, the estate trustee will be a member of the deceased’s family.
The term “substitute decision-maker” generally refers to a person who is authorized under PHIPA to consent on behalf of an individual to the collection, use or disclosure of personal health information about the individual.
Where the individual is deceased, the substitute decision-maker may make such a request on behalf of the deceased individual.
Paul is a partner at Davidson Cahill Morrison LLP. He has proven himself a fearless advocate by a number of successful trial outcomes over the years, including a $11.5 million judgment for medical malpractice causing cerebral palsy against a negligent doctor as well as a recent judgment against a negligent emergency room physician who caused the death of a 34 year-old mother of 4 young children.
On August 15, 2024, a birth injury medical malpractice lawsuit was dismissed in the Ontario Superior Court of Justice.
The Plaintiffs alleged birth trauma resulting in neurodevelopmental limitations due to a lack of informed consent with respect to the use of forceps and vacuum to expedite the birth of the child. The Plaintiffs further alleged negligence with respect to the timeliness of a C-section while the fetus was in distress.
On July 25, 2024, the Court of Appeal for Ontario dismissed the appeal of an emergency room physician whose negligence in failing to consider a stroke in his differential diagnosis led to delayed treatment and bad outcome for the patient.
