Can medical records also include a subjective assessment of the patient's behaviour? Is the healthcare provider obliged to provide the patient with a copy of his medical records without charging for the costs incurred? In today's post, we will present two judgments dealing with these issues. Their findings are relevant to the everyday practice of health service providers.
Subjective assessment of the patient’s behaviour in medical records
A man was identified in his medical records as an “offender” and aggressive and rude patient, who subsequently sought a written apology from a university hospital and the deletion of these subjective judgements made by a healthcare professional from his medical records. Unsuccessfully.
At the end of September last year, the Supreme Court issued its judgment, by which a dispute between the patient and the healthcare provider culminated. In the present case, the patient visited the outpatient clinic for a scheduled examination, but upon arrival he objected to the presence of redundant staff and complained about the lack of privacy.
A healthcare professional entered in the medical records that the patient was verbally aggressive, hostile and rude. In addition, he used the term “offender” instead of “patient”. This was followed by a record of the fact that the patient refused the examination and left. Following the incident, the patient sought a written apology and the deletion of the subjective judgements on the grounds of interference with his personality rights, including through the courts.
The first instance court held that the contents of medical records were not capable of interfering with protected personality rights at all. The appellate court agreed with the conclusions and factual findings of the first instance court, when stating that the plaintiff had not become entitled to have the allegations in question deleted. The appellate court argued that the record was justified by the applicant's subsequent refusal of treatment.
After the appellate review, the Supreme Court dealt with the case, in particular the question of admissibility of subjective assessment of the patient's behaviour by the healthcare provider in the medical records and compliance of such conduct with the Health Services Act. The Supreme Court primarily divided and defined assessment judgements and factual allegations, referring to its previous resolution.
Subjective assessment, according to it, falls under the category of assessment judgements. According to the Supreme Court, the importance and purpose of medical records is not only to record the indication of the patient's health condition and the prescription of medicines or the planning of the treatment procedure, but at the same time, medical records are also evidence in the case of disputes arising out of health services provided. The contents can also include the reason why health care was not provided.
According to the Supreme Court, in addition to the standard data, it is also justified to include in medical records information about the provider's communication with the patient, records of the instructions given to the patient, information about the patient's questions or communications that could affect the provision of health care and, consequently, the development of the patient's health condition, as well as clarification of the circumstances surrounding the provision of healthcare services and records of other information that the provider deems necessary to include.
The Supreme Court thus summarized that the patient's behaviour, the manner of his communication (verbal and non-verbal), response to external stimuli, etc. are also an expression of his mental state and in this sense also relevant information about his health condition, which undoubtedly belongs in medical records. It should be noted that the Supreme Court also criticised the defendant hospital for improper use of the term “offender”. The plaintiff’s motion for appellate review was dismissed.
It follows from the conclusions drawn that, in addition to factual conclusions, subjective assessment judgements can also be recorded in medical records if they relate to the provision of health services or their refusal. The university hospital did not act arbitrarily; the records were ultimately made to describe the circumstances surrounding the procedure in providing health services.
Right to a first copy of medical records free of charge
A German healthcare provider made the provision of a copy of medical records to the patient conditional on reimbursement of its costs. However, the Court of Justice of the European Union (“CJEU”) rejected such an approach and emphasized that under the GDPR rules, the patient has the right to obtain a first copy of his or her medical records free of charge.
The subject-matter of the proceedings before the national court was a dispute between a patient and his treating dentist. The proceedings were preceded by the patient's unsuccessful request for provision of medical records, which the dentist refused on the grounds that, under national law, medical records could only be provided after payment of the costs associated with providing them.
The questions referred to the CJEU by the national court concerned in particular the interpretation of selected provisions of the GDPR which lay down the conditions for the provision of a first copy of personal data free of charge, and other related rights. In its judgment, the CJEU expressed its views, inter alia, on the questions whether:
- Is the healthcare provider obliged to provide personal data to the patient, even where the patient requests it in order to check compliance with a lege artis procedure?
- Does the patient have to justify his request for the provision of a first copy free of charge?
- Does the patient have the right to obtain a copy of complete documents contained in his medical records (e.g. medical reports, examination results or information on interventions provided) or only a copy of the personal data as such?
In all of these cases, the CJEU sided with the patient, emphasizing that the rights of an individual to access his or her personal data cannot be unreasonably restricted, even to protect the economic interests of the healthcare provider who will incur necessary costs in providing a copy of the personal data.
Therefore, when the patient first requests the provision of a copy of all his medical records, the healthcare provider must, in principle, grant the request, regardless of the grounds for the request. At the same time, according to the CJEU, personal data must be viewed in a broader sense; therefore, the health service providermust always provide the patient with complete medical records.
The CJEU's conclusion applies only to the first provision of medical records, so the patient is not entitled to be provided a copy free of charge upon repetitive requests. In addition, the health service provider is entitled to protection against blatant abuse of the right by the patient to access to his medical records. Thus, in the case of repetitive or otherwise vexatious requests, in addition to charging a reasonable fee, it may deny the patient's request.
Although the CJEU ruled on a preliminary question submitted by the German court, its judgment is also relevant for the provision of health services in the Czech Republic. According to the rules currently in force, a healthcare provider can claim compensation for the costs incurred in the making and subsequent sending of an extract or copy of medical records.
However, in light of the CJEU judgment, these rules should not apply in the case of the patient's first request for the provision of his medical records (unless it is an abuse of his right). We will see whether and how practice will response to the CJEU judgment.
-  – Judgment of the Supreme Court of the Czech Republic of 27 September 2023, Case No. 25 Cdo 517/2022.
-  – Act No. 372/2011 Sb., on Health Services and Conditions of Their Provision, as amended.
-  – Resolution of the Supreme Court of 29 November 2007, case No. 30 Cdo 1174/2007.
-  – With reference to Section 53 of the Health Services Act, which provides that medical records include, inter alia, other relevant circumstances related to the patient's condition and the procedure in providing health services.
-  – Judgment of the Court of Justice (First Chamber) in FT v. DW, C-307/22, of 26 October 2023.
-  – Article 12(5) GDPR.
-  – Provision of Section 66(3) of Act No. 372/2011 Sb., on Health Services.