Law 3101A/B Lecture Notes - Lecture 9: Health Professional, Regulatory College, Punitive Damages

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Chapter 9 Documentation and Related Issues
The rest of the course material provides a legal framework for developing an information policy
Other key elements of such a policy, including information systems, security, technology, and
management practices, have been left to others who have expertise in these matters
Part 1: Record keeping
(a) What is an adequate patient record?
In addition to patient records, practitioners and agencies invariably maintain administrative
records relating to policies, procedures, staff, financial issues, accident and incident reports, and
other matters
o Although much of the following discussion is applicable to all types of records, the focus
is on treatment or clinical records
A court would likely view a patient record as including all recorded information, regardless of
the manner in which it was recorded, that a health professional or agency has about a patient’s
treatment, counselling or care
o Health professionals have considerable discretion in terms of the range of information
that they record
However, at a minimum, the record should contain all of the information
necessary to coordinate and carry out the patient’s treatment
o The specific content and the level of detail should be based on the patient’s needs
Obviously, the amount of information recorded and the level of detail will
increase with the seriousness of the problem and the risks associated with the
proposed intervention
The level of detail should also reflect the health professional’s assessment of the patient
o Record entry generated in seeing a stable, longstanding patient need not be as
extensive as that in seeing a new patient or one that is immature, rash, or manipulative
o The amount of information recorded will likely be greatest at the outset of the
relationship, as a practitioner collects background information and attempts to identify
the patient’s concerns
The focus of the record keeping will likely narrow and the level of detail will
likely decrease once a treatment plan has been decided upon and implemented
The record should contain sufficient detail and be organized in a manner that would allow a 3rd
party to recreate what the health professional observed and thought, what they did, and why
the approach was adopted
o The record should also permit a colleague to step in and assume responsibility for the
patient’s care, without detriment to the patient
o In other words, the record must provide for continuity of care
If a health professional has a record that is sufficient to provide for ongoing, quality care, then
the record will be adequate for legal purposes
It is the patient’s clinical needs and not the law that is the driving force in record keeping
(b) The legal importance of record keeping policies and practices
Although professionals tend to focus on being held civilly liable, good record keeping practices
are probably of greater benefit in avoiding or addressing problems that would otherwise
generate litigation
o Good records discourage frivolous or unmeritous legal claims
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Good record keeping practices will assist practitioners in responding to the increasing demands
to testify and to provide information to patients and litigants
1. The role of records in litigation
a. The record of a practitioner is admissible in legal proceedings. It provides a basis upon which a
court will reconstruct the facts of the case. Moreover, the SCC has held that a record made
contemporaneously with the treatment will be considered prima facie proof of the factual
statements made therein. This principle is limited to official records kept pursuant to a legal
duty and to persons who had personally observed or had knowledge of the facts being recorded.
Ares v. Venner
b. A practitioner is allowed to use the record to refresh their memory in giving testimony. This will
greatly increase the practitioner’s credibility, because they may have seen 100s or 1000s of
other patients after the particular incident giving rise to the case
c. A practitioner’s credibility will be greatly influenced by the state of the record. If it is sloppy,
incomplete, and incoherent, it will suggest that the practitioner is careless and unconcerned
about the patient. If it is well-written, comprehensive and organized, it suggests the practitioner
is careful and competent
d. According to experienced lawyers, a practitioner’s record is often the single most important
factor in the outcome of any litigation. It serves as the basis for trial preparation, the seeking of
expert opinions and the expert’s testimony. The record is critical in terms of what it says and
fails to say
e. The record may play an even greater role in litigation concerning counselling, because there will
be rarely any physical evidence. Moreover, individual counselling typically takes place in private
in the absence of any potential 3rd party witnesses
2. Penal consequences
Federal criminal law and various provincial laws create statutory obligations to make and
maintain records
o A breach of these provisions may constitute a federal or provincial offence
o E.g. a failure to comply with the Ontario MHA’s record keeping provisions constitutes
and provincial offence, which is subject to a max fine of $25 000
3. Professional consequences
The failure to keep adequate records is a specific ground for professional misconduct for various
treatment professionals
Artinian v. College of Physicians and Surgeons of Ontario
Dr. Artinian had been warned several times about his records
When he was informed that his records were going to be reviewed, he shipped them to a
computer company and refused to tell the College their whereabouts
o Most of his records were lost or destroyed by the company, and only 2,000 of the
74,000 records were recovered for inspection
o Many of the records contained no patient history and were deficient to the point of
putting some patients at risk
College found Dr. Artinian guilty of professional misconduct, fined him $5,000 and suspended
his license for 27 months
Court rejected his appeal and held up the College’s decision and penalty
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Postscript: In 1996 he was charged with defrauding OHIP of $4.7 million for services that were
never provided. It was reported that he had left the country and that he and his mother
transferred $5.5 million to the Bahamas
Hasan v. College of Physicians and Surgeons
Dr. Hasan, who was being sued by a former patient, was found guilty of professional misconduct
for wrongfully obtaining the patient’s mental health records for use in the suit
o The College found that he had “misused” a Medical Consent Form, which the patient
had not signed, to gain access to the record
The College suspended his license to practice for 4 months
(c) Civil liability for negligent record keeping
There has been a sharp rise in the number and types of negligence claims arising from record
keeping and related communication problems
o We have spoken about such cases: D.M v. British Columbia and Hendrick v. De Marsh
The next 3 cases highlight the importance of safeguarding confidential information, ensuring
that patient information is communicated to all relevant parties and implementing effective
follow up procedures
Peters-Brown v. Regina District Health Board
o The plaintiff, a prison guard, had been treated for hepatitis at the defendant hospital
5 years later her name appeared on a list of persons described as “previously
identified cases” whose bodily fluids had to be handled with caution
List was taped to a computer in an area of the emergency department that was
supposed to be restricted to specified hospital staff, but police, ambulance and
prison personnel were occasionally allowed access
A copy of the list ended up being posted in the staff room at the prison where
she worked
o She sued the hospital on several grounds, including negligence, in order to recover for
her embarrassment and mental anguish from having her private medical condition
widely disseminated at work
o The Court did not fault the hospital for compiling the list for use in a restricted part of
the emergency department to which only relevant hospital staff had access
However, the hospital staff was negligent in failing to ensure that unauthorized
individuals were excluded from the area
In the absence of measures to exclude outsiders, it was foreseeable that the list
would be seen by unauthorized individuals and its contents would be
disseminated outside the hospital
o The hospital could have easily avoided this problem by storing the information in its
computer system, rather than leaving it taped to a computer where it could be observed
by any passer-by
o Hospital was held liable in negligence for the careless handling of the plaintiff’s
confidential medical information
F.C. (Litigation guardian of) v. 511825 Ontario Inc.
o FC and H were students with developmental delays who attended the same high school,
but lived in separate group homes
FC, who functioned at a 5-7 year olds level, had the more profound mental
disability
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