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Patient Records: Ownership, Possession, Access

By July 25, 2013January 20th, 2022Practice Management

I’ve previously written about dental records here. But every now and then it’s worthwhile to re-visit a topic to reiterate important legal principles. So here we go.

Dentists don’t own Patients

A number of cases have held that dentists don’t own patients. See:

  • Goodman v. Newman, [1986] OJ. No. 922
  • Bacher v. Obar, [1989], OJ. No. 1392
  • Kronick v. Lamarche, [1991] O.J. No. 907
  • Dangstorp v. Lefebvre [1992] S.J. No. 755
  • Lodwig v. Mather, [1995] AJ. No. 382

Patients are free to choose their service provider and cannot be tied to any particular dentist.

So what about patient records?

Dentists can own Patient Records

In McInerney v. MacDonald, [1992] 2 SCR 138, Mrs. Margaret MacDonald (a patient) made a request to Dr. Elizabeth McInerney (her doctor) for copies of her complete medical file. Dr. McInerney gave Mrs. MacDonald everything SHE had prepared, but not what she had RECEIVED from other physicians who had previously treated her. Dr. McInerney believes that those records were the property of those physicians and that it would be unethical for her to release them. She suggested that she contact those other doctors for release of their records. Mrs. MacDonald commenced legal proceedings and sought an order directing Dr. McInerney to provide a copy of her entire file relating to Mrs. MacDonald. All three levels of the Court (including the Supreme Court) agreed with Mrs. MacDonald and ordered the file to be disclosed. On the issue of ownership of the medical records, Justice La Forest for the Supreme Court wrote:

14 I am prepared to accept that the physician, institution or clinic compiling the medical records owns the physical records.

So that’s easy enough to understand. And in Axelrod (Re), [1994] O.J. No. 2277, the Ontario Court of Appeal held that there was no difference between physician files and dental files.

But the next issue becomes: which dentist owns a particular patient chart? Things can get a bit foggy when dentists are practicing in a partnership, as cost-sharers, or as principal/associate (employee or independent contractor). If dentists are practicing in an unincorporated partnership, then the patient records are usually owned by the partnership as partnership property (unless the parties agree otherwise in a partnership agreement). In a cost-sharing relationship, each cost-sharer will typically own their own patient records. And in the context of an associate/principal, the agreement between them should stipulate who (i.e. typically the principal, unless the agreement says otherwise) owns the patient records. But sometimes, in an independent contractor relationship, the associate may own their own patient records too. In any event, the important thing is to make sure that the relationship clearly defines who owns the records.

Patients can access their Records

In McInerney v. MacDonald, [1992] 2 SCR 138 (discussed above), the next issue that arose before the Court was whether the patient has the right to access their own records. On this issue, the Supreme Court wrote the following:

38 Since I have held that the tangible records belong to the physician, the patient is not entitled to the records themselves. Medical records play an important role in helping the physician to remember details about the patient’s medical history. The physician must have continued access to the records to provide proper diagnosis and treatment. Such access will be disrupted if the patient is able to remove the records from the premises. Accordingly, the patient is entitled to reasonable access to examine and copy the records, provided the patient pays a legitimate fee for the preparation and reproduction of the information. Access is limited to the information the physician obtained in providing treatment. It does not extend to information arising outside the doctor-patient relationship.

Conclusion

39 In the absence of regulatory legislation, the patient is entitled, upon request, to inspect and copy all information in the patient’s medical file which the physician considered in administering advice or treatment. Considering the equitable base of the patient’s entitlement, this general rule of access is subject to the superintending jurisdiction of the Court. The onus is on the physician to justify a denial of access. The majority of the Court of Appeal came to essentially the same conclusion, although, as is evident from the above discussion, for different reasons [emphasis added].

Patient Records can be Pledged as Security for a Loan

Initially, there were some Ontario cases that supported the view that a dentist could not pledge patient records as security for a loan.

In Josephine v. Wilson Family Trust v. Swartz (1993), 16 OR (3d) 268, 23 CBR (3d) 88, Justice Blair held that the information in dental records is confidential and that the patient has a trust-like beneficial interest in them. He was of the view that dental records COULD NOT be pledged as an asset of a dentist, despite the fact that the physical record belongs to the dentist. If the records were used by the dentist as an asset for the purpose of raising financing, the patients’ legitimate expectation of confidence, he said, COULD NOT be respected.

And Justice Browne came to a similar conclusion in an unreported decision, Confederation Life v. Pickering, released by endorsement on April 19, 1993. The endorsement reads as follows:

I agree with submissions made that the medical records as physical things are the property of the doctor but that the information therein is that of the patient as discussed in McInerney v. MacDonald, [1992] 2 SCR 138. These records are things capable of being seized. I accept the position advanced that they may not be seized. For this conclusion I find assistance in s. 37(1) para. 30 of Reg. 547 (Health Disciplines Act), which prohibits giving of information absent the patient’s consent unless required by law. The result is that the records are not subject to seizure being the answer to point 1.

Now thankfully, this is not where the law stands today. In the case of Re: Axelrod, [1994] O No. 137, the Court reviewed both of those cases and wrote the following:

With great respect, I have some difficulty with the concept that the relationship of trust which undoubtedly exists between doctor or dentist and patient results in the patients’ files or records being analogous to trust property for purposes of the BIA, that is to say, property in which the bankrupt holds a bare legal title but has no beneficial interest. It seems to me that the case law already establishes that the files or records are property beneficially owned by the medical practitioner. The full use and enjoyment of that property by the medical practitioner is, however, subject to common law and statutory rights of the patient with respect to maintaining confidentiality and with respect to access. Property interests subject to certain restrictions or rights of third parties are capable of being charged. In my view, so long as such rights are preserved by the creditor realizing upon its security, that creditor ought not to be deprived of realization and enforcement rights granted pursuant to a security agreement.

In Re: Axelrod, Dr. Samuel S. Axelrod and his management company, Seax Management Ltd., made a general security agreement (GSA) with Medi-Dent Services, a division of Commcorp Financial Services Inc., which is in the business of financing professionals. The GSA covered, among other things, accounts receivable and patient lists, charts, and files. On November 18, 1993, Dr. Axelrod and Seax Management Ltd. became bankrupts. This was also the same day that Justice Blair released his decision in Josephine v. Wilson Family Trust v. Swarz! But Medi-Dent moved forward for a court order allowing it to enforce its security on Dr. Axelrod’s patient lists and files. Medi-Dent must have sensed the conflict between various laws (e.g. patient privacy, a dentist’s professional obligations, the bankruptcy and insolvency act, personal property security law, etc.). So it decided to give some promises (i.e. undertakings) to the Court if it succeeded. It would have another dentist step in and access the records and write to all the patients, offering to look after them or transfer their records to other dentists of their choice. The Court was satisfied with Medi-Dent’s undertakings; Justice John D. Ground wrote:

I am satisfied that the proposed manner of enforcement by Medi-Dent preserves such confidentiality and access rights. I am not convinced that the patient’s right to have confidentiality maintained is affected by the fact that the dental practitioner appointed by Medi-Dent will write to the patient regarding the disposition of his or her file rather than Dr. Axelrod writing to the patient. In any event, this Court could order Dr. Axelrod to write to the patients. Such an order has not been sought by Medi-Dent in this case but on further motion I would be prepared to so order. My order will include a provision that Medi-Dent itself not take physical possession of the records but that physical possession be taken by a qualified dental practitioner appointed by Medi-Dent. I understand Medi-Dent is prepared to abide by such an order. It is not clear to me that the creditor in either Wilson v. Swartz, supra, or Confederation Life v. Pickering, supra, submitted to the Court an enforcement procedure which clearly protected the patients’ rights to maintenance of confidentiality and to access.

Justice Ground’s decision was upheld on appeal (see: Re: Axelrod [1994] OJ No. 2277). Specifically, the Ontario Court of Appeal wrote:

17 In my respectful view, the approach taken by Ground J. is consistent with the dentist’s entitlement to dispose of his or her assets while at the same time respecting his or her professional obligation to fully protect the confidential information contained in the patients’ files. I see no difference between a dentist’s entitlement to sell his or her practice, and a dentist’s entitlement to pledge records. Both can be accomplished in a manner compatible with a dentist’s professional responsibilities, as long as the dentist acts with the utmost good faith and loyalty in protecting the patient’s confidence.

18 … The dentist can only pledge his assets to the extent of his or her interest in them. A dentist who pledges his or her patient files has a continuing duty of utmost good faith and loyalty to the patients when the creditor executes on the security. This involves a duty on the part of the dentist who has pledged his or her patients’ records, to seek and obtain the patient’s consent to the transfer of files in execution of the security. This mirrors the duty a dentist would have if he or she were to sell his or her dental practice.

23 When a dentist sells or pledges his patient list, as the appellant did in this case, I think that he or she should be held to have parted with his or her own interest in the patient list, subject to his or her patients’ rights to confidentiality and access. In my view, the patient’s right to access to his or her record includes a right of access for the purpose of determining which dentist the patient wishes to consult in the future. The interest of the patient in having access to a dentist of his or her choice is adequately protected in this case, by the letter that the incoming dentist would send to the patients notifying them of the change. That letter contains no indication of whether the appellant was continuing to practise at another location. However, it invites patients to obtain their records if they wish to retain a dentist other than the one who has taken over the appellant’s practice. Should patients inquire about the possibility of a continued relationship with the appellant, the incoming dentist would have to assist them by providing them with whatever information was available to him or her about the appellant’s whereabouts.

DMC