by Mina Karabit November 29, 2023 5 min read

A recent case from the Divisional Court is an important reminder for physicians that they should not be accessing a patient’s hospital records, even in the context of defending malpractice litigation.

In Martin (Estate) v Health Professions Appeal and Review Board, an emergency medicine physician treated a patient over a four-hour period, before transferring the patient to another hospital. 

Subsequently, the patient commenced a medical malpractice action against his former physician alleging that the physician failed to identify compartment syndrome that later left him disabled. While pursuing the action, the patient discovered that the physician accessed his hospital records on several occasions over a four-year period, even though he was no longer involved in the patient’s care and had transferred the patient to another hospital. 

Specifically, the physician accessed the patient’s hospital record on six occasions: 

  • December 2011 – two weeks after ceasing treatment 
  • December 2013 – shortly after the Statement of Claim in the malpractice suit was served but over two years after treatment ceased 
  • December 2013 – five hours after the above-noted access 
  • January and February 2014 
  • December 2015 – over four years after treatment ceased 

The physician could not recall what records were accessed on which occasion but recalled that he did not access records that were irrelevant to the issues in the litigation. 

As a result, the patient complained to theCollege of Physicians and Surgeons of Ontario(CPSO) about the physician’s conduct in accessing his hospital records. 

The Physician’s Reasons for Accessing the Records 

The physician responded to the complaint stating that the first access in December 2011 was because he did not have time to complete his record keeping with respect to his treatment of the patient on the day the patient presented to the emergency department. Thus, he accessed the patient’s chart to complete the record keeping. 

With respect to the other instances, the physician stated that he accessed the records in 2013 shortly after being served with the Statement of Claim in order to request assistance in defending the lawsuit. He then accessed the records in 2014 and 2015 in order to prepare for meetings with his lawyer retained to defend him in the malpractice suit. 

The Inquiries, Complaints and Reports Committee’s (ICRC) Decision 

After investigating, the ICRC decided to take no further action against the physician. Key to this decision was the ICRC’s finding that the physician had accessed the patient’s hospital records for the purpose of instructing counsel and defending himself in the medical malpractice proceeding and that such access was permitted under37(1)(h)of the Personal Health Information and Protection Ac, 2004 (PHIPA). Simplified, section 37(1)(h) ofPHIPA allows ahealth information custodian touse personal health information for the purpose of a proceeding in which the custodian or its agent is expected to be a party or witness if the information relates to an issue in the proceeding. 

The Health Professions Appeal and Review Board’s (the Board) Decision 

On review, the Board first considered whether the ICRC had conducted an adequate investigation. The patient asserted that it had not for a number of reasons, including that it failed to investigate what actual records the physician had accessed and that it failed to obtain the relevant hospital policies governing access to personal health information.

The Board found that it was not possible for the ICRC to identify which records the physician had accessed. However, the ICRC had done what it needed to do to make an informed decision in the complaint especially as this was not an investigation where the facts were in dispute. 

With respect to the reasonableness of the ICRC decision, the Board noted that there was nothing to suggest that the physician was lying about the reasons why he accessed the records in question. The Board held that the physician’s access to the records after the litigation was commenced against him “fell squarely” within the provision of section37(1)(h) ofPHIPA

The Divisional Court’s Decision 

Ultimately, the Court set aside the Board’s decision and remitted it back to the Board for reconsideration in accordance with its reasons. Since the Board agreed with and upheld the ICRC’s underlying reasons, the Court focused on the ICRC decision in its analysis.

In reaching its decision, the Court found that the ICRC’s decision was unreasonable because it was based on a flawed and incomplete analysis of the governing statutory scheme. The matter warranted a careful analysis of the relevant provisions ofPHIPA and the physician’s actions given the fundamental importance of guarding the confidentiality of personal health information and of a patient's medical records. 

The physician was unilaterally and without the permission of the patient or the health information custodian (the hospital), accessing his former patient’s hospital records, some four years after the one occasion in which he rendered medical treatment and long after he ceased to be part of the patient’s circle of care. 

This occurred at a time when these hospital records were in an electronic database under the custody and control of a public hospital with policies and oversight responsibilities for the use and disclosure of these records. Moreover, this happened in circumstances where the physician had already been provided by his counsel with copies of the relevant parts of the hospital record, obtained pursuant to the Rules of Civil Procedure which were applicable in the malpractice lawsuit.

The ICRC failed to identify that the physician wasnota health information custodian, but rather was an agent of the health information custodian (the hospital). It also failed to identify that the physician had compliance obligations to the hospital before accessing, using, and disclosing such information in the malpractice suit. 

Additionally, the ICRC did not discuss the physician’s failure to comply with the CPSO’s policy or the provisions ofPHIPA — other than giving an unduly broad application to section37(1)(h). The broad interpretation was inconsistent with the purposes of, and protections afforded by the legislation. It did not considersection 30which provides that personal health information is not to be disclosed when it is not necessary to do so. In the present case, the physician already had the relevant hospital records produced in the lawsuit — he did not need to access the chart through the hospital’s system to defend himself. 

Note: The team at Wise Health Law has extensive experience in defending health professionals before their college’s Inquiries, Complaints and Reports Committee and the Health Professions Appeal and Review Board. Please contact us to see if we are able to assist you.

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



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