The statutory obligations of hospitals with respect to preservation and retention of records are set out in sections 19-21 of Regulation 965 made under the Public Hospitals Act, R.S.O. 1990, c. P40, as amended. Hospitals are required to preserve patient records for 10 years from the date of last discharge for patients who are 18 years of age or older, and for 10 years from the date of the patient’s eighteenth birthday where the patient was a child.

In a recent decision, the Ontario Superior Court of Justice considered whether the loss of patient charts should lead to an adverse inference that a Hospital was negligent in caring for an infant in the days following his birth. Baby I.V. was born at approximately 4:40 p.m. on a Thursday, and mother and baby were discharged home 42 hours later, at 11:00 a.m. on Saturday. By Sunday afternoon, Baby I.V. was demonstrating signs of jaundice, and was returned to the Hospital by his parents. Unfortunately Baby I.V. suffered from kernicterus and as a result developed significant physical and mental disabilities. His parents brought an action against the Hospital and attending physician, alleging that Baby I.V.’s jaundice should have been diagnosed prior to his discharge home on Saturday.

The delivery, birth and initial stay records for Baby I.V. and his mother went missing at some time prior to the action being brought. The plaintiffs retained their onepage copy of the Newborn Record, however, and the Hospital was only able to generate copies of records which were kept electronically, such as test requisitions and results. There was no evidence that the medical records were deliberately or intentionally lost or destroyed by the Hospital or physician in order to “cover up” any aspect of Baby I.V.’s care. Furthermore, there was ample evidence in the records that were available, as well as the oral evidence of the witnesses who testified, to allow the Court to make findings of fact in respect of the time period covered by the missing records. The Court held that, in the circumstances, a sufficient understanding of Baby I.V.’s situation was not materially impeded by the absence of the missing records, and went on to dismiss the action against the Hospital and physician, finding that they were not negligent in respect of their care of Baby I.V.

This case is a timely reminder that although the loss of patient charts may not be fatal to a hospital’s defence, the creation and preservation of patient records in accordance with the Public Hospitals Act is not only required by law, it can be critical to defending against malpractice actions. The case is also an important reminder that records other than patient charts may become important where other records are accidentally lost or destroyed.

There are a number of important documents other than patient charts which are traditionally not preserved, or not preserved for the same length of time. However, as demonstrated in the case outlined above, these documents may in some instances be helpful in defending hospitals and their employees from allegations of negligent care in medical malpractice actions. Some examples include:

  • paging records;
  • incident reports;
  • policies, procedures, guidelines, and/or directives;
  • records confirming when verbal lab result reports were given;
  • Kardex/Nursing Care Plan;
  • physician on-call schedules;
  • nursing schedules and assignment sheets; and
  • records of telephone calls.

Although hospitals are not required to preserve all documentation under the Public Hospitals Act, they may wish to consider preserving any documentation that could assist in defending hospital and nursing care for the same time period as that required for the records covered by the legislation. We recognize that preserving this volume of documents may not be possible in all instances. Some of these documents may now be preserved electronically, however, which simplifies risk of maintaining copies for hospital that wish to adopt this “gold standard” for document retention.

The recent case outlined above is a reminder to hospitals that it is worthwhile to carefully consider the benefits and drawbacks of retaining copies of records which they are not required by law to keep.

When dealing with particular decisions as to whether materials and documents should be retained, it may often be of assistance to obtain legal advice.

Bill Carter, Tim Buckley, and Anna Marrison of Borden Ladner Gervais LLP represented the Hospital before the Superior Court.

You can access the Public Hospitals Act and the Regulations thereunder at:

http://www.e-laws.gov.on.ca.