Tag: medical records

21 Mar

Admissibility of Medical Records

Nick Esterbauer Capacity, Estate & Trust, Health / Medical, Litigation, Wills Tags: , , , , , , , , 0 Comments

Medical records are frequently key evidence in estate disputes.  Often, a testamentary document or inter vivos transaction is challenged on the basis that the deceased lacked testamentary capacity or the mental capacity to make a valid gift.

The British Columbia Supreme Court recently reviewed the issue of admissibility of medical records within the context of a will challenge.  The parties propounding the last will asserted that the deceased’s medical records were inadmissible on the basis that (1) the parties challenging the will were attempting to admit the records for the truth of their contents, (2) the records included third party statements from family members, which was suggested to constitute double hearsay evidence, and (3) the records were entirely inadmissible because they were not relevant, none of them being within weeks of the date of execution of the challenged will.

In Re Singh Estate, 2019 BCSC 272, the estate trustees named in the deceased’s will executed in 2013 only learned of the existence of a subsequent will executed in 2016 after they provided notice to the beneficiaries of the estate that they intended to apply for probate in respect of the 2013 will.  The 2016 will disinherited two of the deceased’s eight children (including one of the two adult children named as estate trustee in the 2013 will) on the basis that they had received “their share” in their mother’s estate from the predeceasing husband’s estate.  Between the dates of execution of the 2013 and 2016 wills, the deceased had suffered a bad fall and allegedly experienced delusions and had otherwise become forgetful and confused.

At trial, medical records are typically admitted under the business records exemption of the Evidence Act (in Ontario, section 35).  Justice MacDonald acknowledged this general treatment of medical evidence, citing the Supreme Court of Canada (at para 48):

While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Ares[ v Venner, [1970] SCR 608]. The Supreme Court of Canada held at 626:

Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.

Subsequent case law cited by the Court addressed the second objection of the parties propounding the will, which provided that the observations that a medical practitioner has a duty to record in the ordinary course of business (including those involving third parties) are generally admissible (Cambie Surgeries Corporation v British Columbia (Attorney General), 2016 BCSC 1896).  Lastly, the Court considered the issue of relevance of the medical records and found that evidence relating to the mental health before and after the making of a will can be relevant in supporting an inference of capacity at the actual time of execution of the will (Laszlo v Lawton, 2013 BCSC 305).

After finding the medical records to be admissible as evidence of the deceased’s mental capacity (and in consideration of all of the available evidence), the Court declared the 2016 will to be invalid on the basis of lack of testamentary capacity.

Thank you for reading.

Nick Esterbauer

01 Sep

Ontario Unveils Prescription Narcotics Strategy

Hull & Hull LLP Capacity, Estate & Trust, Health / Medical, In the News Tags: , , , , , , , , , , , , 0 Comments

Last Friday, the Ontario Ministry of Health announced plans to introduce legislation later this month that will allow the province to expand its drug database to track prescription drugs. The narcotics database will identify prescription ‘hot spots’ and alert officials when a patient attempts to fill prescriptions from multiple doctors at multiple pharmacies. Prescriptions under both public and private drug plans will be monitored. [Currently, the tracking system only tracks drugs prescribed under a provincial program that funds meds for seniors, welfare recipients and the disabled.] Provincial Health Minister Deb Matthews indicates that the plan will also work with regulatory groups like the College of Physicians and Surgeons of Ontario to create ‘better pain management strategies for its members’. The proposed narcotics strategy has received resounding support from both the Centre for Addiction and Mental Health (CAMH) and the Ontario Pharmacists’ Association.

Earlier this year, I blogged about the issue of ‘doctor shopping’, defined as the practice of visiting numerous doctors, dentists, or pharmacies to fraudulently obtain prescriptions for non-medicinal use. Of particular concern are narcotics and other controlled substances, including painkilling opioids (including morphine, codeine-containing Tylenol 2s, 3s and 4s, Percocet, Oxycontin, and Fentanyl), stimulants (amphetamines such as Ritalin) and sedatives (such as Valium, Xanax, and Ativan).  Some stark statistics:
• In the past decade, prescriptions for oxycodone-containing drugs jumped 900% in Ontario. Last year, under the OHIP drug plan, the province spent over $150 million for narcotics, half of which was for Oxycontin.
• 18% of students (Grades 7 – 12) report using prescription opioids non-medicinally in the past year. The overwhelming source for the students’ opioids was not schools, or the street, but their own homes.
• Ontarians, per capita, use three times more prescribed narcotics than patients in other provinces.
• Last year, the Canadian Medical Association Journal reported that in Ontario, accidental deaths due to opioid use exceeded deaths from HIV.

As an aside, I am curious: In estate proceedings where testamentary capacity is in dispute, will the contents of the narcotics database be accessible pursuant to court-ordered production of “all relevant medical records”?

Jennifer Hartman, Guest Blogger

03 May

Cognitive Screening Tools

Hull & Hull LLP Capacity, Estate & Trust, Health / Medical Tags: , , , , , , , , , 0 Comments

In the course of reviewing medical records in advance of estate litigation, one will encounter a wide variety of cognitive screening tools used to identify cognitive impairment. A handful of these tools are described here:

Confusion Assessment Method (CAM): an ICU assessment tool used to detect the presence or absence of delirium. A CAM assessment is usually carried out once every 8-12 hours (once per nursing shift). Results are presented as either ‘CAM-positive’, or ‘CAM-negative’, indicating the presence or absence of delirium, respectively.
Mini-Mental Status Examination (MMSE): a quantitative measure of cognitive status in adults. Despite its well-documented limitations, the MMSE is the most widely used standardized cognitive screening test in both clinical practice and research. Scores (out of a maximum 30 points) are paired with an associated level of impairment, i.e. no impairment, mild impairment, moderate impairment or severe impairment.
The Montreal Cognitive Assessment (MoCA): a rapid cognitive screening instrument used to detect mild cognitive impairment. This user-friendly tool assesses attention and concentration, executive functions (these are the high-level abilities that control more basic abilities and behaviours), memory, language, conceptual thinking, visuoconstructional skills, calculation and orientation. Studies have shown the MoCA to be far more sensitive than the Mini-Mental Status Examination (MMSE) in its ability to detect mild cognitive impairment.

There are dozens of other cognitive screens in use including the Mini-Cog, the Rowland Universal Dementia Assessment Scale (RUDAS), the Clinical Dementia Rating (CDR), the Memory Impairment Screen (MIS), and the recently published Self-Administered Gerocognitive Examination (SAGE). In the context of a dispute regarding testamentary capacity, cognitive screening results are valuable for the estate practitioner, in that they provide tangible, measurable, time-sensitive information regarding the testator’s cognitive functioning, and serve as a tool for assessing the progression of the impairment.

Jennifer Hartman, guest blogger

07 Mar

Securing the Medical Records of a Deceased Doctor

Hull & Hull LLP Estate & Trust Tags: , , , 0 Comments

The estate trustee of a deceased doctor has to secure that doctor’s medical records. Standing in the shoes of the deceased doctor, the executor of his or her estate assumes the legal obligation that the doctor had to safeguard the privacy of his or her patients.  But, as reported online in the Globe and Mail over the weekend, the Saskatchewan Privacy Czar, Gary Dickson, has raised concerns over the perceived failings of executors of such estates in his province. 

As quoted in the Globe and Mail, Gary Dickson states that "A trustee has to take responsible measures to safeguard information…generally that means records being locked away in a place that somebody else doesn’t get access to."  Notwithstanding this expectation, Mr. Dickson details various examples of medical records being abandoned or, in one case, being released for profit.

As in Ontario, it appears that the College of Physicians and Surgeons of Saskatchewan has bylaws that address the situation of a doctor discontinuing practice but not the situation wherein an estate trustee assumes custody of the records.

The duty of the estate trustee to the patients of the deceased doctor is likely of no concern to the beneficiaries. Accordingly, it would be interesting to consider how the beneficiaries would view a claim by an executor for a special fee for securing these records.

David Morgan Smith

David Morgan Smith – Click here for more information on David Smith.




10 Nov

Medical Records Protocol

Hull & Hull LLP Estate & Trust Tags: , , , , , , 0 Comments

Medical Records are one of the most important categories of evidence available to the estate litigator. In most cases, medical records from health care providers who treated a testator in and about the time a Will was made will be seen as the most persuasive evidence available because the author of such records will be seen as both (i) possessing some degree of expertise related to the assessment of capacity and (ii) exhibiting complete objectivity as a witness (unlike the family members who may be contesting capacity).

In Ontario, the College of Physicians & Surgeons of Ontario (“CPSO”) has posted a policy on its website providing the public with information concerning medical records and what they are required to contain. Not surprisingly, security and privacy of medical records is one of the foremost concerns. Of particular interest is the fact that one of the “principles” of good record keeping as mandated by the CPSO is to maintain “information essential to others for a wide variety of purposes…including legal proceedings”

For its part, the Ministry of Health and Long-Term Care has stringent requirements for the production of Claims Reference Files providing details of all health care providers who have provided services to a deceased client. Typically, a Certificate of Appointment of Estate trustee With a Will or a Court order will be required to obtain a Claims Reference File for a Deceased.

David Smith

David M. Smith – Click here for more information on David Smith.


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