Medical Records in Birth Injury Cases

The plaintiff in Steinebach applied for an order for special costs against the defendant on the basis of those late additions to the hospital chart, among other things.¹⁸ The court did not order special costs, finding that the trial judge did not conclude that these late entries, even though not labelled as such, were not done to deliberately mislead the court or to bolster the defendant’s evidence. Although special costs were not awarded in this case,Steinebach does highlight the importance of reviewing the original chart in a case where the chronology of events, and the implications of what a physician knew at each moment of the case is critical. Photocopies can be useful for an initial review of a case,but there is no substitute for viewing the original record. Plaintiff’s counsel needs to be alert to the possibility that after-the-fact additions or changes have been made to the medical record that are not properly annotated as late entries. Although this can helpfully call into question the veracity of the evidence of the defendants, it will not usually rise to the level of “gross impropriety” required to attract punitive or special costs awards.

Electronic Medical Records and Medical Data

As more and more clinics and hospitals move to electronic medical records, we lose the opportunity to identify notes handwritten in a different pen or written in the margin of a page. But electronic health records in British Columbia must include an audit trail that records when changes are made to the record, what changes are made, and by whom. ¹⁹ In addition to the medical chart, medical equipment often retains an electronic record of results. It can be important to ask for the electronic data from monitoring equipment, including fetal heart monitoring strips, to ensure that you the complete picture of all of your client’s assessments and monitoring. This information is not always available through the thematic records department, nonetheless that might be the best place to start with your requests for information. The medical records department should be able to advise you where to direct your specific requests for information derived from the medical technology. Of course if the action is started and there is a hospital defendant, those requests will need to go through defence counsel.

Conclusion

Contemporaneous charting is one of the requirements for records to be admitted as business records under the Evidence Act. While late-entries into medical records are recognized as a necessity from time to time, they must be clearly marked as such. If they are not, and they are determined to be late entries either by handwriting analysis, comparison with facts that appear elsewhere in the records, or even by “time stamp” on a dictated operative or discharge note, the veracity of the witness/defendant can be called into question. Even chart entries not directly related to the alleged breaches can be important to impugn a defendant’s claim of an “invariable practice.” There is no substitute for a line-by-linereview of the medical records, often assisted by an expert who knows what should be there, and what shouldn’t be there, and can assist in spotting out-of-order entries and other problems.

1. Pinch (Guardian ad litem of) v. Morwood, 2016 BCSC 938 (CanLII).
2. Ibid, para 13.
3. Also see Waap v. Alberta, 2008 ABQB 544 (CanLII) at para 10 for a discussion of the court’s prerogative to make an inference that if nothing was charted it is because nothing was done.
4. Skeels (Estate of) v. Iwashkiw, 2006 ABQB 335 (CanLII).
5. Ibid, para113.
6. Brito et al v. Woolley et al, 2005 BCSC 443 (CanLII).
7. Ibid, para 16.
8. Ibid, para 22.
9. See Hewlett v. Henderson, 2006 BCSC 309 (CanLII) at para 44 for an example of the court not accepting the defendant physician’s evidence that events were ingrained in his mind even though they were not charted.
10. Turkington v. Lai, 2007 CanLII 48993 (ON SC) at para 93.
11. Cojocaru v. BC Women’s Hospital, 2009 BCSC 494 (CanLII).
12. Ibid, para 100.
13. PSG-Medical-Records-Documentation.pdf (cpsbc.ca), September 1, 2014, last revised May 6, 2022.
14. Paxton v. Ramji, 2006 CanLII 9312 (ON SC).
15. Ibid, para 73.
16. Steinebach v. Fraser Health Authority, 2010 BCSC 832 (CanLII)
17. Ibid, para 56.
18. Steinebach v. Fraser Health Authority, 2011 BCSC 1369 (CanLII).
19. Health Professions Act, RSBC 1996, c.183, s. 3-5(2).