Bogoroch & Associates LLP is pleased to announce recent success at compelling the production of electronic audit trails of a patient chart despite the hospital’s refusal.
AUDIT TRAILS ARE RELEVANT AND PRODUCIBLE
Associate Justice Brott’s Endorsement dated May 17, 2024 in the matter of Law v Preiner confirms that audit trails are relevant and producible when properly pleaded. This action arose from the death of a patient following surgery at an Ontario hospital. The Plaintiffs requested the complete audit trails from the preoperative period to date, including from after the date of death. The hospital objected to producing audit trails from after the date of death on the basis that they were not relevant to the action.
Associate Justice Brott disagreed, ordered production of the audit trails after the date of death and held that:
In my view, if the hospital accessed the patient records even after the death of Ms. Law – then those actions go to the alleged breach of patient privacy. The breach of the policies of patient privacy have been clearly pleaded. The policies around patient privacy do not end with the death of a patient. Accordingly, I find that the audit reports for the period from November 7, 2021 to the present are relevant and producible.
This endorsement will help medical malpractice lawyers obtain audit trails and find out whether anyone accessed hospital charts after the events giving rise to the lawsuit, in breach of patient privacy. This information is also important because it can result in the Defendants disclosing more evidence than they otherwise would have without the audit trails, as discussed further below.
WHY IS PATIENT PRIVACY IMPORTANT?
Patient privacy and confidentiality are fundamental to healthcare. The healthcare system is premised on the patient’s right to control who has access to their personal health information. Because of this, healthcare professionals are not permitted to access the personal health information of their patients at their discretion or for their own purposes.
Rather, access, use and disclosure of personal health information is tightly governed by legislation, policies and practice standards. This includes privacy legislation, such as Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A (PHIPA), practice standards, such as those respectively published by the College of Physician and Surgeons of Ontario and the College of Nurses of Ontario, and the privacy policies at individual hospitals.
WHAT ARE AUDIT TRAILS?
Audit trails are how hospitals ensure their staff comply with their own privacy policies as well as the statutory requirements imposed by PHIPA. Audit trails allow hospitals to identify the individuals who accessed patient charts, the dates they accessed the charts and whether they made modifications to the patient charts.
As health information custodians under PHIPA, hospitals are responsible for ensuring compliance with PHIPA by their physicians and nurses. Hospitals across Ontario have implemented electronic audit trails to track information about patient charts in order to protect patient privacy and ensure compliance with PHIPA.
WHY ARE AUDIT TRAILS IMPORTANT IN MEDICAL MALPRACTICE LAWSUITS?
In medical malpractice lawsuits, audit trails can provide important information that may not be available from any other source.
WHEN WAS INFORMATION ACCESSED?
Audit trails can confirm the precise date and time a Defendant obtained crucial patient information by viewing a patient chart. If the patient information required prompt action, audit trails showing the Defendant viewed the chart on a specific date and time can undermine a possible defence that the Defendant did not learn about the crucial information until later.
WAS INFORMATION EVER ACCESSED?
The converse is also true: audit trails can confirm that a Defendant never viewed a hospital chart, never informed themselves of or perhaps even missed key patient information. Again, if the patient information required prompt action but the Defendant never bothered to obtain that information, this can call into question the medical care that was provided.
WHEN WAS A NOTE CREATED AND SIGNED, AND WAS IT MODIFIED?
Audit trails can also confirm the date and time a note was created, signed and modified. Audit trails will generally show when a Defendant signed their note and whether a Defendant made changes to their note or even created a further note, often called an addendum. If any of this occurred only after an adverse patient outcome, it can raise questions about the accuracy of the note given the timing of when it was created or modified.
DID A DEFENDANT ACCESS THE CHART AFTER THE END OF PATIENT CARE?
Audit trails can also confirm whether a Defendant viewed the patient chart after their care of the patient ended. Again, healthcare providers cannot access personal health information at their discretion because they are bound by PHIPA and the privacy policies imposed by their regulators and their hospitals. A Defendant may have contravened privacy legislation or policies by looking at the patient chart in the days, months or even years after they cared for the patient. This, too, can raise questions about what prompted the Defendant to look at the chart even though they were no longer caring for the patient.
OBTAINING AUDIT TRAILS IN MEDICAL MALPRACTICE LAWSUITS
The medical malpractice lawyers at Bogoroch & Associates LLP understand the value of audit trails in medical malpractice lawsuits and they are experienced at obtaining audit trails even when the hospital refuses to produce them. If you or a loved one has been injured as a result of medical malpractice, contact one of the lawyers at Bogoroch & Associates LLP for an assessment of your case.