Reasonable Cost Recovery: How Hospitals Push the Envelope

In Ontario, individuals have the right to access their personal health information contained in a hospital chart. You can request copies of your medical records from a hospital, and for a fee, they will be provided to you. There are a number of reasons why you may wish to access your medical records – when applying for insurance, making a claim for workers compensation, changing doctors, or seeing a new specialist.

If you are injured because of someone’s carelessness (for example in a car accident or as a result of medical malpractice), your medical records are required to investigate or pursue a lawsuit. When you hire a lawyer, you will usually give written authorization for the hospital to send your medical records to your lawyer. The lawyer will then request the records on your behalf, allowing you to focus on your recovery.

When a hospital receives a request for records, it is permitted to charge a fee for copying and providing them to you. The hospital is only permitted to charge an amount that represents its reasonable cost recovery. That means it can charge its actual costs to produce the records; it is not supposed to profit because you request access your personal health information.

You may be surprised to learn that many hospitals charge different fees when the request comes from the lawyer than when you request the records yourself. For example, the majority of hospitals in and around London, Ontario, charge $200 for the first 20 pages of records, and $1.00 per page for the rest. That means that if there are 5 pages of records, the fee is $200. If there are 500 pages of records the fee is $680. If there are 5000 pages of records, the fee is $5,180.00. In contrast, when the request is not from a lawyer, or related to a potential lawsuit, the fees more closely reflect the cost of production. Some hospitals take the position that a decision made by the Privacy Commisioner in 2010 admonishing health care providers for charging excessive fees does not apply to requests made by lawyers on behalf of clients. In that case, a fee of over $125 charged to an individual for about 35 pages of records was found to be unreasonable and was reduced to $30. In order to rationalize a $5,180 records request, even if it took two full days for a person to copy 5000 pages of records, the fees would amount to well over $300/hr after accounting for the cost of paper and toner for the copier. I confess ignorance about the pay rates of hospital photocopier operators, but if they are that high, I will definitely apply for a position!

The obvious discrimination in this fees policy is illustrated when you apply it to an everyday scenario. If your neighbourhood grocery store implemented the hospital’s policy, it would mean that if you attend personally at the store to purchase a carton of eggs, the store will charge you about $3. If your lawyer picks them up for you, the supermarket marks the price up to $200.

Clearly these hospitals understand neither the obvious discrimination in their policies nor the burdens they are placing on their own patients. In the end, whether the request comes from the individual or the lawyer, the cost is borne by the individual. A request for records from a lawyer is not a fundraising opportunity for hospitals. Ironically, in a successful lawsuit against the hospital, the cost will ultimately be passed on to the hospital’s insurance company. One wonders if the administrators who create such policies have considered the increased costs of insurance premium that surely result.

This blog post was contributed by Joni Dobson, OTLA Director and Lawyer with Legate & Associates LLP.

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Joni became a partner at Legate & Associates in 2012 having joined the firm 6 years before. Her practice is restricted to serious personal injury disputes, with a particular focus on medical malpractice and motor vehicle collisions. She has represented injured people both at trial and on appeal. Joni believes that an injured person should have a strong advocate who will go the full distance when required to obtain fair results.