When the records prepared by a physician are flawed, your health is at risk. Before a doctor can reach a diagnosis, he must first think of the diagnosis in the context of your symptoms and history. That is difficult, perhaps impossible, if the chart mis-quotes the patient, or contains medical opinion that is not cogent or competent.
A clinic has this similarity to a courtroom: The recording of evidence must be impartial. A physician (like a judge) must faithfully log the tangible evidence in front of him, and never defy the facts by ignoring them; never substitute any facet with his own wishful notions. But this does happen in a courtroom, frequently, a hallmark of the high stakes of trials. It does happen in a clinic consulting room, frequently, a hallmark of the white-coat culture behind closed doors.
The sidebar (right) outlines the sections of a medical chart. As your care progresses, errors at any point in the record spell trouble: A right step could be overlooked, or a wrong step taken (leading, for example, to unnecessary surgery or referrals to unsuitable specialists). Worse, when the diagnostic process gets side-tracked, treatment is inevitably delayed – sometimes for life.
Pro-active patients should build a personal file of records from each GP, specialist, and hospital. When you do read your chart, you may be astonished at the propensity for error. How do you solve this? Karen Shaw, Medical Manager of the College of Physicians and Surgeons of Saskatchewan, had this advice for the webmaster of Tuum Est:
“You have done the appropriate thing by taking your concerns directly to Dr. Wine in your two letters with respect to information that you felt was inaccurate in your record. As physicians cannot change the records, can only make addendums to them, your letters may be added to your file in Dr. Wine's office to indicate that you disagree with the information contained in that file. [Date: 2001 to 2018]
The College letter is printed in full below. The date of the letter is 2001, but that matters none. The advice stands pat as of 2018. The onus for chart integrity is still on the patient. The position is shared by the Saskatchewan Medical Association (SMA):
“The patient, with few exceptions, has a right of access to, and to request an amendment of, his or her personal health information, but the physician owns the medical record.
A physician may refuse to amend the chart when the questioned content relates to the physician's diagnosis or opinion. Where a physician refuses to make an amendment, a notation must be placed in the file indicating which information is disputed by the patient. [Date: 2018]
From the above: Even when error is identified, there is no guarantee the doctor will take action apart from storing the patient's memo in the chart. The phrase ‘medical opinion’ is a loophole calculated to cover everything an MD says, running the gamut from technical data to calumny. The driving factor is fear: Once an MD admits an error, especially in writing, he worries the admission may be used as proof in a malpractice lawsuit – when all most patients want is to get their health-care back on track. Tuum Est solution: Develop ‘no-fault amendment’ where the patient signs a release of financial liability before the chart is cleared of confusion (in most cases).
The SMA has dual purpose: it organizes continuing education for doctors, and it serves as a labor union with clout when doctors bargain with government. The SMA ensures their members' views are embodied in provincial health legislation, including the Health Information Protection Act. This Act clearly expects the patient to take virtually all the initiative for chart amendments. Refer to sections 13 and 40:
“13. An individual who is given access to a record that contains personal health information with respect to himself or herself is entitled:
(a) to request amendment of the personal health information contained in the record if the person believes that there is an error or omission in it; or
(b) if an amendment is requested but not made, to require that a notation to that effect be made in the record.
40.(6) A physician is not required to notify other physicians where: (a) an amendment or a notation cannot reasonably be expected to have an impact on the ongoing provision of health services to the individual.
40.(7) An amendment required to be made pursuant to this section must not destroy or obliterate existing information in the record being amended, other than registration information. [Date: 2018]
Billing errors stay for all time on the written record even when cut-and-dried and proven. When scams occur (such as upcoding or claims for non-existent procedures) funds may be recovered, but the records are never patched. On the Billing Statement for your health-number, false claims have equal status with legitimate claims – which can result in gross distortion of a patient's interaction with the health system.
Illustrative case: A GP group billed $2,892 for 134 non-existent appointments for one patient. This patient, who obtains her Billing Statement at intervals, discovered the fraud. She notified the MCIB (the payment arm of Sask Health) who ordered the doctors to repay the funds. But the record contains only a side note which does not even name the doctors. A letter from the MCIB sets out their position:
“The inappropriate billings have ceased … While there has been a recovery of funds, your Statement of Physician Services will continue to reflect all payments made to the physicians. Our systems do not allow for removal of claims that have been paid to physicians; however, we have noted in your situation that some claims were determined to be inappropriate.
[Patient: Tuum Est webmaster Georgena Sil / GP: Dr. Nayar]
Tuum Est solution: The Billing Statement requires only a minor style change: Mark off illicit claims with a symbol (such as an asterisk) and/or print the line in a contrasting color (such as light-gray on a monochrome page). For example, see our reproduction of the Billing Statements for the Dr. Nayar case cited above.
Canada has two federal privacy laws: (1) The Privacy Act relates to an individual's right to access and correct personal information held about them by the Government of Canada. (2) The Personal Information Protection and Electronic Documents Act (PIPEDA) covers the private sector.
PIPEDA sets out the rules for how private-sector organizations collect, use, disclose, and amend personal information in the course of commercial activities across Canada. It only applies to organizations engaged in commercial activity, which includes physicians.
Some provinces have enacted privacy legislation (HIPA) which is substantially similar to the federal PIPEDA. In these provinces, PIPEDA is not drawn upon unless the personal information crosses provincial or national borders. But in other provinces and territories, the local HIPA privacy law differs considerably from PIPEDA. In those regions, an application to PIPEDA would succeed as federal law supersedes provincial law.
The compliant and non-compliant provinces are listed in the table below. Saskatchewan, the province under discussion on this page, is non-compliant.
“4.9.5 When a patient successfully demonstrates the inaccuracy or incompleteness of personal information, the MD shall amend the information as required. Depending upon the nature of the information challenged, amendment involves the correction, deletion, or addition of information. Where appropriate, the amended information shall be transmitted to other members of the health-care team.
“Responsibility for monitoring and maintaining accurate records cannot be shifted from organizations to individuals.
Compliant ProvincesCurrently, only six Canadian provinces have enacted HIPA privacy laws that are deemed substantially similar to the Federal PIPEDA legislation:
|• British Columbia||• Ontario||• New Brunswick|
|• Alberta||• Quebec||• Newfoundland & Labrador|
Non-Compliant ProvincesThe remaining provinces and territories also have their own HIPA laws, but these are not substantially similar to the Federal PIPEDA. In these regions, an application under PIPEDA may succeed:
|• Saskatchewan||• Nova Scotia||• Nunavut||• GNWT|
|• Manitoba||• Prince Edward Island||• Yukon Territory|
|Source: Privacy Legislation in Canada Fact Sheet|
D.A. KENDEL, M.D.
Direct all correspondence
to the Registrar
Physicians and Surgeons
G.W. PEACOCK BUILDING,
211 - FOURTH AVE. SOUTH,
SASKATOON, SK S7K 1N1
Business: (306) 244-7355
(306) 244-0090 (General)
(306) 244-2600 (Dr. Kendel)
OUR FILE: #12/02
Ms. Georgena Sil
P.O. Box 1491
SASKATOON, SK S7K 3P7
Dear Ms. Sil:
As Medical Manager of the Complaints Investigation and Resolution Process of the College of Physicians and Surgeons, I have reviewed the information you referred to the Registrar in your letter dated June 8, 2001.
I would advise that the College of Physicians and Surgeons does not keep information such as this on file unless it is part of an ongoing investigation of one of the College's committees. I would suggest that you have done the appropriate thing by taking your concerns directly to Dr. Wine in your two letters with respect to information that you felt was inaccurate in your record. As physicians cannot change the records, can only make addendums to them, your letters may be added to your file in Dr. Wine's office to indicate that you disagree with the information contained in that file.
The information you sent to us is being returned with this letter. You may wish to retain it on file yourself. If at a later date you wish to place a specific complaint against the care provided to you, I would be pleased to receive the information at that time.
Karen Shaw, M.D.
Complaints Investigation and Resolution Process
Competent caring Physicians providing quality health care.
PIPEDA does not require that health data be completely accurate, complete, and up-to-date; rather, it requires that health data be as accurate, complete, and up-to-date ‘as is necessary for the purposes for which it will be used.’ Thus, it is the use that the information is put to that dictates the degree of accuracy, completeness, and currency the information must have.
An organization cannot escape responsibility for complying with the Accuracy Principle under PIPEDA merely because the organization has chosen a system that is commercially sensible. There is no defence of practical necessity set out in PIPEDA.
Canadians need a means to challenge industry standards. A breach of PIPEDA does not depend on whether an organization's practices fall below industry standard. The practices of an entire industry may run counter to the Principles laid out in PIPEDA Schedule I.
An organization's duty to assess the accuracy, completeness and currency of health information is an ongoing obligation. It is not triggered only when the organization is notified by individuals that their personal data is no longer accurate, complete or current.
Responsibility for monitoring and maintaining accurate records cannot be shifted from organizations to individuals.
In circumstances where it is appropriate for an organization to notify third parties to whom it had previously disclosed inaccurate information, it must also provide the actual amended information in order to ‘set the record straight.’
4.6 – Accuracy: Personal information shall be as accurate, complete, and up-to-date as is necessary for the purposes for which it is to be used.
4.6.1 – The extent to which personal information shall be accurate, complete, and up-to-date will depend upon the use of the information, taking into account the interests of the individual. Information shall be sufficiently accurate, complete, and up-to-date to minimize the possibility that inappropriate information may be used to make a decision about the individual.
4.6.2 – An organization shall not routinely update personal information, unless such a process is necessary to fulfill the purposes for which the information was collected.
4.6.3 – Personal information that is used on an ongoing basis, including information that is disclosed to third parties, should generally be accurate and up-to-date, unless limits to the requirement for accuracy are clearly set out.
4.9.5 – When an individual successfully demonstrates the inaccuracy or incompleteness of personal information, the organization shall amend the information as required. Depending upon the nature of the information challenged, amendment involves the correction, deletion, or addition of information. Where appropriate, the amended information shall be transmitted to third parties having access to the information in question.
4.9.6 – When a challenge is not resolved to the satisfaction of the individual, the substance of the unresolved challenge shall be recorded by the organization. When appropriate, the existence of the unresolved challenge shall be transmitted to third parties having access to the information in question.
Tuum Est - It Is Up To You
Created half to rise,
and half to fall;
Great lord of all things,
yet a prey to all;
Sole judge of truth, in
endless error hurled;
The glory, jest, and
riddle of the world!
Essay on Man (Epistle 2)
A medical chart has four main segments titled symptoms, signs, diagnostics, and treatment.
To build a personal copy of your chart, at a minimum ask for:
The Canadian Supreme Court paved your way in McInerney v. MacDonald (1992) SCC, which ruled: Patients have the right to obtain a copy of their chart from a clinic or hospital. While the physical paper belongs to the doctor, the information belongs to the patient.
With that precedent, the College of Physicians and Surgeons of each province, who formerly frowned on informed patients, did an about-face and is now your best ally for obtaining records from a reluctant MD.
Where the College falls down is their minimal approach to correcting mistakes in the record. This applies to the 7 provinces and territories non-compliant with PIPEDA.
Copyright © 2008-2018 Georgena Sil. All Rights Reserved.