by Mina Karabit March 16, 2022 3 min read

In addition to clinical competency, medical record-keeping is fundamental to good patient care. Understandably, a medical record is an essential tool in providing continuity of care for patients.

In addition to providing continuity of care, a medical record can be critical in defending against a college complaint — especially when the complaint is made several years later. A recent case from the Divisional Court, Szommer v. Ontario College of Nurses, highlights the importance of both record-keeping and record preservation.

Decision of the ICRC

In 2019, Ms. Szommer complained that a nurse falsely recorded visits and bloodwork at a fertility clinic in 2009 and 2010. The College of Nurses of Ontario investigated and determined that the original records were not available but had access to the electronic records. The electronic records, however, did not bear out the complaint.

As a result, the Inquiries Complaints and Reports Committee (ICRC) of the College decided to take no further action. The delay between the events in issue and the complaint was significant, and the electronic records did not support the complaint.

Appeal to the Health Professions Appeal and Review Board

Dissatisfied with the results, Ms. Szommer appealed the College’s decision to the Health Professions Appeal and Review Board (Board), arguing that the College should have investigated further as it was her evidence that the records had been falsified.

The Board disagreed with Ms. Szommer and affirmed the College’s decision.

The Board relied on the health records as they were legal documents that all health professionals must make. They provide a contemporaneous record of the interactions with the patient — before the commencement of any complaint or legal process. In the absence of compelling information to the contrary, health records are a reliable source of information as to what occurred during patient encounters.

Application for Judicial Review

Further dissatisfied with the Board’s decision, Ms. Szommer commenced an application for judicial review, alleging the Board erred in law and rendered an unreasonable decision in relying on the medical records.

Upon receiving her application, the Divisional Court put Ms. Szommer on notice that it was considering dismissing the application as frivolous, vexatious, and an abuse of process. In doing so, the Court explained that although it is always possible to investigate a matter more thoroughly, the results of this investigation corroborated the nurse’s position, not the complainant. Moreover, it was implicit that the complainant’s oral evidence about these events could not be sufficient to displace the existing medical records to justify disciplinary proceedings against the nurse.

In her submissions, Ms. Szommer repeated that the medical records were falsified and that the Board erred in accepting the medical records given her concerns. Her arguments were focused on whether there are compelling circumstances to the contrary that should have led the College and the Board to reject the medical records and continue their investigation.

The Court disagreed with Ms. Szommer. Given the very long period between the events in issue and the complaint, relying on medical records rather than oral testimony of events going back ten years is more compelling. As a result, the Court dismissed Ms. Szommer’s application.

Note: Our blog does not replace legal advice tailored to your specific situation. At Wise Health Law, we have extensive experience in guiding regulated health professionals through College proceedings. We would be pleased to assist you.

To learn more about Wise Health Law and our services, please contact us!

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