JANUARY 15, 2008


Who owns my patients' records — me or the hospital where I work?

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.

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.


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 health_lawyer@nationalreviewofmedicine.com 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.




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