Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Michael Carabash) or David Mayzel.
So this is a second of a series of blog posts that I’m writing about dental records. In my first blog, I discussed what dental records were and the reasons why dentists must or should have them (i.e. for legal, ethical, and professional reasons). In this blog, I’ll be tackling the issue of WHO OWNS THEM.
Now, when you think about it practically, there are only a few parties who can claim to own the dental record: the dentist, the dental clinic, or the patient. The reality is that the actual dental records (i.e. the physical written or electronic information kept about patients) legally belong to the dental professional, but the patient has an interest in the personal information contained therein and can access them (to be discussed in the next blog).
Here is some caselaw that supports this conclusion.
In Lamothe v. Mokleby (1979), 4 Sask. R. 352, 106 D.L.R. (3d) 233, the Saskatchewan Court of Queen’s Bench was dealing with a dispute arising under an agreement for the sale of a dental practice. On the subject of ownership of patient records, MacPherson J. stated the following:
6 No authority can be found by counsel or by me on the subject of the ownership of clinical records in dentistry. Inasmuch as the law regards dentistry in many respects as a branch of medicine, then one may look to medical authority.
7 In the Canadian text, Malpractice Liability of Doctors and Hospitals, Meredith, 1956, the author says at page 10:
“Medical notes made by a doctor in private practice are for his own use in treating a case and belong to him.
… The patient himself has no legal right to [their] possession or ownership”
Much the same is said in the more recent English text, Law Relating to Hospitals and Kindred Institutions, Speller, at page 322. Neither text quotes any authority. My brief search of American law shows that it is similar.
8 In the present case the contract between Erle and Buckley does not establish any relationship of master and servant. It is purely one of service by Erle to Buckley who is assumed by the contract to be conducting a dental practice. There is no evidence whatsoever of any relationship between Mokleby and Buckley except that the clinic in which they practised bore Mokleby’s name. There were, of course, frequent professional consultations between any two or even all three of them. Mokleby kept his experienced eye on the quality of work of the young men and particularly Buckley’s because he was just starting. The quality was good.
9 On all the evidence I find that Buckley was carrying on an individual practice of dentistry. Thus the clinical charts were his and not the property of either defendant. It is of no consequence that some, or even all of his patients were referred to him by either Mokleby or Erle’s staff. The rules of ethics of the College of Dental Surgeons of Saskatchewan seem to approve of the sale of dental practices. It is constantly done in this as in other professions. Clinical records such as are the subject of this action go with the practice. To the buyer these are more important than anything else because they provide continuity. There cannot, however, be any assurance that the patient will choose to follow the records. That is the risk of the buyer.
10 I conclude that the defendants were wrong in not delivering the charts as demanded by Lamothe and that Lamothe is now entitled to them. I will, however, except the charts of any and all patients who have since the first of May, 1978, taken dental treatment from Mokleby or any dentist in his office.
Lamothe v. Mokleby was cited with approval in subsequent cases. For example, in Peters v. Palmer et al,  N.J. No. 278, the Newfoundland District Court Judicial Centre of St. John’s stated:
63 There is a paucity of case law on the issue of ownership of clinical records in circumstances where dentists practise together. Counsel for both Peters and the defendants found only one case touching on the issue: Lamothe v. Mokleby (1979), 106 D.L.R. (3d) 233, a decision of McPherson, J., of the Saskatchewan Court of Queen’s Bench. It is interesting to note in that case that the learned judge observed on the lack of authority on the subject. There appears to be no doubt, as he observed in his judgment, that in the case of medical practitioners the patient has no legal right to possession or ownership of medical records. See also The Doctor and the Law (1979) by H.E. Emson, M.D., and The Physician and Canadian Law (2nd Ed.) [*page171] by T.D. Marshall, LL.B, M.D. In my view the same applies in the dental profession. The question remains, as between Peters and the defendants, who owns the records?
74 In my opinion, on the general issue of ownership of clinical records in respect to associate dentists working with a principal dentist, although the subject is not inventions or patents but, instead, records derived from the exercise of a professional skill or faculty, either of the approaches mentioned in W.J. Gage Ltd. v. Sugden, supra, may be adapted here. I am convinced, as I have found, that the defendants were associates in a practice which Peters had decided to enlarge; it was his practice, it was his organization and in my opinion, in the circumstances under which the association came about and was established, it would be inconsistent with good faith for either of the defendants at the end of his relationship to claim the records as his property. The clinical records were gathered in the ordinary course of their duties as associates of the principal and they rightfully belong to the principal.
75 It is true that by their diligence and the success of their efforts Peters financial position and practice was enhanced, but it was he who conceived the idea and initiated the broader professional practice. It was his investment, enterprise and risk and in my view the success or benefit of his enterprise rightfully accrues to him. It was their choice to work within such a framework knowing full [*page174] well the consequences and significance of principal/associate relationships.
76 My conclusion on the general question of ownership of clinical records would be the same on the adaption of either of these approaches. However, an important qualification in either of them is that the right of ownership may be negated or displaced by an agreement to the contrary. In my opinion Peters agreed to give up his right of ownership to the defendants.
Finally, in Axelrod (Re),  O.J. No. 137, the Ontario Court (General Division) reviewed the caselaw on whether dentists and medical practitioners could OWN patient records (in the context of a bankruptcy) and ultimately concluded that they could. The Court cited both Lamothe v. Mokleby and Peters v. Palmer with approval and then reviewed some additional cases:
15 In Bacher v. Obar (1989), 28 C.C.E.L. 160 (Ont. H.C.J.), yet another case arising out of a dispute on the break-up of a dental practice, Saunders J. stated at pp. 174-75:
Patient records present little difficulty. On termination, Dr. Obar was entitled to obtain from Bo-Jay the records of patients he had treated who continued to require his services. The patients do not have a right to their records but, in my opinion, the dentist must have that right. Lack of access to records could severely compromise treatment.
16 A number of texts on the subject of health law also confirm that patient records are the property of the practitioner. Picard, Legal Liability of Doctors and Hospitals in Canada (Toronto: Carswell, 1978), states as follows at pp. 290-91:
The position with respect to a doctor’s office records of a patient is less clear. Like the hospital, the doctor is the owner of the records, but the patient may still be entitled to the information contained in them. This is based on a theory that the information in the record is part of what the patient “purchases” from the doctor. Of course, the opposing argument is that the patient is paying only for services and treatment, not information, and therefore has no access to the information as a matter of right.
See also Rozovsky, Canadian Dental Law (Toronto: Butterworths, 1987), at p. 46, and Sharpe, The Law and Medicine in Canada, 2nd ed. (Toronto: Butterworths, 1987), at p. 203.
17 Finally, the Supreme Court of Canada in McInerney v. MacDonald,  2 S.C.R. 138 at pp. 138-39 [in the headnote], 93 D.L.R. (4th) 415, stated as follows:
The patient is not entitled to the records themselves. The physical medical records of the patient belong to the physician.
The physician-patient relationship is fiduciary in nature and certain duties arise from that special relationship of trust and confidence. These include the duties of the doctor to act with utmost good faith and loyalty, to hold information received from or about a patient in confidence, and to make proper disclosure of information to the patient. The doctor also has an obligation to grant access to the information used in administering treatment. This fiduciary duty is ultimately grounded in the nature of the patient’s interest in the medical records. Information about oneself revealed to a doctor acting in a professional capacity remains, in a fundamental sense, one’s own. While the doctor is the owner of the actual record, the information is held in a fashion somewhat akin to a trust and is to be used by the physician for the benefit of the patient.
18 Accordingly, there is, in my view, no doubt that a medical practitioner has an ownership or proprietary interest in patient files and records which is capable of being conveyed or charged.
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