Privacy

Privacy in the medical malpractice context covers a range of obligations and remedies relating to patient health information that go beyond strict PHIPA enforcement. Ontario law recognizes several overlapping privacy frameworks: PHIPA itself governs health information custodians; the common law tort of intrusion upon seclusion recognized in Jones v Tsige, 2012 ONCA 32 provides a civil cause of action for serious invasions of privacy outside the regulatory framework; section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable state intrusion in cases involving public hospitals and government health agencies; and various professional misconduct provisions in the regulated health professions framework address breaches by individual practitioners.

In medical malpractice litigation, privacy issues arise most often in three contexts. First, the patient’s own records: questions of access, completeness, alteration, and timing of disclosure to plaintiff counsel. Second, the records of third parties who appear in the patient’s chart: family members, other patients, and clinicians whose information may need to be redacted. Third, the records of the defendant practitioner: complaint files, prior litigation, and disciplinary history, which may be discoverable in some circumstances and protected in others.

Posts tagged Privacy analyze Ontario decisions and policy issues at the intersection of health information, regulatory obligations, and civil litigation, including the application of PHIPA, the tort of intrusion upon seclusion, and the disclosure obligations under the Rules of Civil Procedure.