Dear
Lonny
Can you please clarify for me who owns the medical records
of a family practice run by a hospital. I work in such
a practice as a family doctor and pay my hospital a
percentage of my billings. When a patient or a third
party requests copies of their records, the hospital
sends the copies and is paid by the third party. Is
this right or should the physician be paid? Also, should
I tell my patients that records are the property of
the hospital?
— Confused
in the clinic
Dear Confused
In this era of privacy legislation and College policy
statements on patients' rights to access their medical
records, there is little question that the information
in the records actually belongs to the patient! "Who
owns the record?" is less important than "Who is custodian
of the record?", since the custodian role carries with
it myriad responsibilities, including making copies
for the patient. The custodian is entitled to charge
a reasonable copying fee, which is intended to offset
the administrative costs of reproducing the record.
I gather that you outsource the administrative aspects
of your practice, such as scheduling and billing, to
the hospital, and pay a portion of your billings for
that service. I also assume that, while your office
may be located in the hospital, you keep your own records.
Accordingly, you should receive and respond to requests
for copies of your patient records, and consider yourself
custodian, but it makes sense to continue to outsource
the copying (and the right to charge for it) to the
hospital. It's probably not worth your while to claim
entitlement to the administrative fees, given that the
hospital would then be entitled to charge you for the
actual copying costs. Going forward, you might want
to address records management in your agreement with
the hospital.
NOT
DULY NOTED
Dear Lonny
I recently read about a case that really irked (and,
I must admit, worried) me. It was about an ob/gyn who
diagnosed a patient's abdominal pain as a uterine fibroid
and performed a total hysterectomy. But it turned out
the patient actually had endometriosis. Even though
the hysterectomy was the right treatment in the circumstances,
the patient sued the doctor because she would be infertile
— and she won! How can doctors protect themselves
when they can be sued for performing appropriate procedures?
Signed, Outraged
obstetrician
Dear Outraged
I'm pretty sure you're referring to the BC Superior
Court case of Bradaric v Dr B B K Pirani Inc. This case
boiled down to what was and wasn't in the patient's
medical record. The doctor wrote in his consultation
report that the patient wished to have a hysterectomy
as she was not planning to have children. But this fact
was not noted in the doc's progress notes and the patient
testified that she said nothing of the sort. The court
held that there was doubt about whether or not she wished
to preserve her fertility, and therefore the doctor
should not have proceeded with the procedure. The court
found that in the circumstances of a patient who wanted
to have more children, by proceeding with the surgery,
the ob/gyn fell below the standard of care. If the doctor
had noted that the patient told him she did not wish
to have more children, I think the case would have been
decided quite differently.
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Each month Lonny J Rosen, a partner
in the Health Law Group at Gardiner Roberts LLP, will
answer your burning medical-legal questions. Got a question
for Lonny? Send it by email to [email protected]
or by fax to 514-397-0228
This column
is intended to convey brief and general information
and does not constitute legal advice. Readers are encouraged
to speak with legal counsel to understand how the general
issues discussed in this column apply to their particular
circumstances.
http://www.ontariohealthlaw.com
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