If you suspect that medical care has caused harm to you or a loved one, the medical records will be the foundation of any investigation. Without them, no lawyer can give you a meaningful opinion on whether you have a case. With them, the question becomes whether the care met the standard a reasonable practitioner would have provided in the circumstances, which is the question that decides whether a malpractice claim is viable.
In Ontario, you have a statutory right to access your medical records. The right is set out in the Personal Health Information Protection Act, 2004 (PHIPA), which governs how health-care providers collect, use, and disclose personal health information. This post explains how to use that right in practical terms.
What “your medical records” actually includes
A medical record is more than the visit notes. Depending on the issue, the records that matter for a malpractice investigation can include:
- The visit notes and consultation reports from family physicians, specialists, and clinics
- The full hospital chart, including admission notes, progress notes, nursing notes, medication administration records, vital signs flow sheets, and consult notes
- Laboratory results
- Diagnostic imaging (X-rays, ultrasounds, CT scans, MRIs) and the radiologists’ reports
- Operative notes, anaesthesia records, and surgical pathology reports
- Emergency department records, including triage notes
- Electronic fetal heart monitoring strips (in obstetric cases)
- Anatomical pathology slides and images (sometimes only available by direct transfer between pathologists)
- Pharmacy dispensing records
- Ambulance call reports
Some of these (notably imaging, electronic fetal heart monitoring strips, and pathology slides) are not always provided when a patient simply asks for “the records.” If you are investigating a malpractice claim, ask for them specifically by name.
If you are asking about the care of a child born with a birth injury, note that the child has a separate medical record from the mother. Both records will usually be needed.
Where the records live
There is no central repository of medical records for Ontarians. To assemble a complete picture, you have to request the records from each custodian who holds them: the family physician’s office, each specialist, each hospital, the imaging facility, the laboratory, and so on.
If you are not sure which providers were involved, the most useful place to start is the Personal Claims History from the Ontario Health Insurance Plan. This is a printout of all health professionals who billed OHIP for services provided to you. It is the closest thing to an index of your Ontario medical care, and it is particularly useful when you are putting together the history of a deceased family member whose care providers you may not all know. Requests can be made electronically.
How to make the request
PHIPA requires the request to be in writing. Each custodian (the technical term for the health-care provider holding the records) typically has its own intake form, and the easiest path is to call or email and ask for it. If a custodian does not have its own form, you can use the standard Request to Access Personal Health Information form published by the Information and Privacy Commissioner of Ontario.
A complete request will typically include:
- Your full name, date of birth, and contact information
- Health card number
- The dates of care or admission you are interested in
- A specific list of the records you want (the visit notes, the imaging, the EFM strips, the pathology slides, etc.)
- Whether you want electronic or paper copies (electronic is faster, cheaper, and easier to share)
If you are requesting records on behalf of someone else, you will need to provide proof of your authority to act on their behalf (a power of attorney, a Certificate of Appointment of Estate Trustee, or similar). More on that below.
Costs and timing
You will have to pay for your records. The fee varies by custodian, but PHIPA limits the charge to reasonable cost recovery. Electronic copies are typically less expensive than paper copies and they are easier to work with. If you believe a custodian is charging more than is permitted, you can complain to the Information and Privacy Commissioner of Ontario.
PHIPA requires custodians to respond within 30 days of receiving the request, with a possible extension of up to 30 more days in defined circumstances. If your request remains unfulfilled after 60 days and the custodian has not given you a substantive update, follow up.
In practice, some custodians respond within a week. Others take the full 60 days, particularly for hospital records that include imaging or where there are many records to compile.
Records for a child
Under PHIPA, a child of 16 or older can generally request their own medical records. For a child under 16, a parent, a Children’s Aid Society, or another person legally authorized to consent in place of a parent may make the request on the child’s behalf. A capable mature minor under 16 can also request their own records, though the process is less common.
Records for someone who has died
When a person dies, the right to access their medical records passes to the deceased’s estate trustee, who acts as the substitute decision-maker for the deceased. If there is no formal estate trustee, the person responsible for administering the estate (often a close family member) takes on that role.
Hospitals and physicians’ offices will typically ask for proof of estate authority before releasing records. Plan to provide a copy of the death certificate and either a Certificate of Appointment of Estate Trustee or, where the estate is being administered without one, documentation of the role.
Electronic patient portals
Many Ontario hospitals and clinics now make some records available through patient portals such as MyChart. These portals have improved significantly over the past few years and can give you fast access to test results, imaging reports, visit summaries, and immunization records.
Patient portals are useful, but they are not a substitute for a complete records request when investigating a malpractice claim. The portals usually display selected records, not the full chart. The full chart includes nursing notes, flow sheets, internal communications, and other material that is essential to a proper review and is rarely available through a portal.
How long records are kept
Under section 19(1) of the General Regulation under the Medicine Act, Ontario physicians must retain medical records for at least ten years from the date of the last entry. For records of a patient who is a child, the retention period is at least ten years after the day the patient reached or would have reached eighteen. Hospitals operate under similar rules.
If a long time has passed since the care in question, records may have been destroyed in the ordinary course. The earlier you make the request, the more likely it is that the records will still exist.
A note on timing
Medical malpractice claims in Ontario are subject to limitation periods under the Limitations Act, 2002. The basic period is two years from when the claim was, or ought to have been, discovered, and there is an ultimate limitation period of fifteen years from the act giving rise to the claim. For minors, the limitation clock does not generally run until the child turns eighteen.
The records review usually takes time. So does the lawyer’s review, and so does the involvement of medical experts. If you suspect something has gone wrong with medical care, the earlier you start gathering records, the better.
What to do once you have the records
Once you have a complete set, the most useful next step is a consultation with a medical malpractice lawyer. The lawyer will identify what is missing, request anything else that is needed, and arrange for review by appropriate medical experts. Based on that review, the lawyer can provide a meaningful opinion on whether the care met the standard a reasonable practitioner would have provided and whether any breach caused the harm.
For more on the legal process from there, see Suing for Medical Malpractice in Ontario: What You Need to Know. For information about complaints to regulators that exist alongside (and separately from) civil claims, see A Patient’s Guide to Making Complaints About Health Care in Ontario.
The first conversation is free and strictly confidential. The earlier we look at the records, the better.
