Want to turn a defensible case into a sure loser? Alter a chart
September 1, 1999 33 minutes read
Want to turn a defensible case into a sure loser? Alter a chart
By David L. Freedman, MD, JD, FAAEM, Emergency Medicine Physician, Chelsea Community Hospital, Chelsea, MI; Attorney, Miller, Canfield, Paddock & Stone PLC, Ann Arbor, MI.
Medical records serve numerous purposes. The primary purpose is, of course, to document the care that a patient received and to facilitate communication between the various health professionals who care for the patient. However, medical records are also utilized for other purposes (e.g., documentation for billing purposes, utilization review, quality assurance, risk management, credentialing and peer review, accreditation review, and malpractice litigation).
Improper alteration of a medical record can adversely affect the credibility of the medical record as to all of these purposes, as well as the credibility of the practitioners who created the record. Even a properly made correction or addition to a medical record may, in the face of a bad outcome, bring the credibility of the entire medical record into question. This is particularly the case when the entry appears self-serving. Therefore, it is crucial to make all medical record entries complete and factual and to enter them in a timely fashion. Even a factual late entry in the medical record may, because of overly defensive language, be suspect in the face of a bad outcome. Worse yet, this type of medical record addendum may well bring the overall credibility of the physician into question.
The medical record will always be a primary focus of scrutiny in a lawsuit that alleges medical malpractice. The medical record will be of considerable help to the defendant physician if it clearly documents care that falls within the relevant standard of care. An incomplete medical record, or one which does not clearly support care within the standard of care, will be a significant handicap to the defense of the case. An altered medical record will be more than a handicap, it is often the kiss of death to the defense of a case.
When there has been a bad outcome and the patient’s medical record is "lost," particularly when it was in the possession of the defendant physician, or accessible to him or her, defense attorneys find themselves up against a nearly insurmountable obstacle. The obvious inference that the jury may make is that the record "got lost" by the physician because the information contained therein would have been damaging to the defense of the case.
Plaintiffs’ attorneys are well aware of the tremendous advantage they can obtain if there has been a surreptitious alteration of the patient’s medical record. They know that there is nothing better than an altered medical record to turn a toss-up case, or even a likely loser, into a winner. Not only will the case be a slam-dunk winner, the plaintiff will likely prevail without having to invest a significant amount of time or money in pursuing the case. The defendant physician, negotiating from an extremely weak position, will likely settle early and settle high.
Falsification of a medical record may result in all the difficulties associated with an altered or destroyed (lost) medical record. In addition, there may be licensure and/or criminal consequences for the practitioners involved.
Altering the Medical Record after a Bad Outcome
Case #1. In Harris Trust and Savings Bank v Masroor Ali, MD, et al,1 a lawsuit was filed on behalf of a child, alleging a failure to timely diagnose and treat the child’s illness. While our interest in this case is primarily related to the alteration of the medical record, the case provides excellent examples of the violation of numerous medical risk management principles. Because of the multiple lessons to be learned, we will cover the facts of this case in significant detail.
The patient, John Hopp Jr., was born May 13, 1972. He was healthy at birth and developed normally during the first six months of life. He first became ill on Nov. 19, 1972, when he developed vomiting and a fever of 102°F. His mother treated the fever with aspirin. Because he did not improve, his mother took him to his pediatrician two days later. The pediatrician made a diagnosis of bronchitis and prescribed ampicillin.
The child did not improve and by the next day his fever had risen to 105°F. Reportedly, he was now staring and was unable to follow movements of people or things. "He was like a wet dishrag. He had no control, no movement of his extremities."2
Commentary: Anyone having trouble with the diagnosis here? It is, of course, especially obvious since a lawsuit ensued and we have chosen to discuss the case in a risk management context.
The parents tried to reach the pediatrician three times by telephone but were unsuccessful. They left a message, but he failed to return their telephone calls.
Commentary: While the importance of a foolproof message follow-up system is not the focus of our interest in this case, had the pediatrician returned the parents’ calls, the outcome might have been different, and there might never have been a lawsuit.
The following afternoon the parents took the child to the emergency department at Sherman Hospital.
Commentary: If the pediatrician had returned the parents’ calls, presumably he would have advised the parents to take the child to the emergency department and, as a result, the child might have received appropriate treatment earlier. However, given the care he ultimately received in the emergency room, this is not altogether clear.
The child’s mother told the nurse that her baby was running a high fever, vomiting, staring, and "doing nothing."3 The nurse noted on the medical record that the "child was staring and was non-reactive" and the baby’s temperature was 105°F.4 The baby was treated with aspirin and was sponged with ice cold water. After more than an hour of sponging the child, his temperature was down to 100-102°F.
At this time the child was finally examined by the emergency physician. Both of the parents testified that "he was in the room for about two minutes and examined the child for less than a minute."
Commentary: How many risk management lessons can we expect to find demonstrated in a single case? At trial, the physician claimed that he "gave the child a complete physical examination and performed the basic neurological tests."5
Commentary: The ultimate outcome suggests that the parents’ version was likely closer to the truth.
The emergency physician diagnosed an upper respiratory infection and pharyngitis. He advised the parents to continue the ampicillin previously prescribed by the pediatrician. When the parents left the emergency department, they were given a printed slip of paper stating that "if the patient’s condition persisted or got worse, they should contact his physician or return to the emergency room."6
Commentary: Persist how long? What does "worse" mean?
Just prior to the filing of the lawsuit, the emergency department record "solely indicated that the diagnosis was U.R.I. pharyngitis.’ The sole treatment listed was aspirin grain 1,’ continue medication as prescribed by Dr. Feinberg yesterday’ and cold sponge.’"7 There was no notation of the child’s vital signs and there was no notation that any physical or neurological exam of the child had been conducted.
The day after the emergency department visit, the child was slightly improved. "He was able to move his head and neck slightly but his extremities were still limp."8 The child’s father called the pediatrician who told him to continue the ampicillin and to bring the child to the office four days later.
Over the ensuing weekend, the child became worse. He became "limp and listless; he began to emit a screech or hurt cry, and his eyes appeared to be crossed."9 When the pediatrician saw the child in the office, despite being advised by the mother of the child’s condition over the past few days, he again diagnosed bronchitis and changed the child to another oral antibiotic. The pediatrician made no arrangements for a follow-up appointment.
Five days later, the child had still not improved and the child’s father took the baby back to the pediatrician and insisted that he be admitted to the hospital. The pediatrician reluctantly agreed. A spinal tap was traumatic, showing bloody fluid. After admission, the child was treated with intramuscular, not intravenous, antibiotics. Despite the fact that the child demonstrated "even more classic meningitis symptoms" and laboratory results suggested meningitis, the pediatrician did not definitively make the diagnosis of meningitis until two days later.10 Only then was the child placed on intravenous antibiotics.
The child ultimately survived but suffered "serious injuries from the disease including extreme brain damage and quadriplegia."11 After trial before a jury, a judgment was entered in favor of the plaintiff in the amount of $1.5 million, a very considerable sum by 1970s standards.
After the complaint was filed, the emergency department record was subpoenaed and copied. By this time, the emergency department record had been altered by the emergency physician to add "a detailed examination of the infant whose examination was negative."12 In addition, Dr. Ali had added: "Dr. Feinberg notified," and "to see Dr. Feinberg in the morning."13 At trial the emergency physician, Dr. Ali, admitted that he had altered the chart, although he maintained that he could not recall when he had done so.
On appeal, the emergency physician argued that admission of evidence that he had altered the medical record should not have been admitted into evidence. The Illinois Court of Appeals denied the appeal and upheld the admission of the evidence regarding the medical record alteration. The court’s holding, in particular what a jury may infer from a medical record alteration, illustrates the devastating effect a medical record alteration may have on the defense of a malpractice case: "It is textbook law that the fabrication of false documents is an admission by conduct in that the person fabricating the document gives grounds for believing that his case is weak . . . When evidence is shown to have been fabricated, a presumption arises that the cause of action or the defense it was intended to support is without substantial foundation.’ Furthermore, the question by Feinberg [the pediatrician] on this issue was relevant to show the incredibility of Ali’s [the emergency physician] testimony. He could not recall’ when he altered the document but he could remember exactly what he did on a single routine day several years before, including informing Feinberg of his examination and diagnosis."14
Commentary: It was certainly less than clear that Dr. Ali had adequately examined the child in the emergency department. Evidence was admitted at trial that would suggest otherwise, and his original entry in the medical record clearly did not support his contention that an adequate examination had been performed. If, however, an adequate examination had been performed and it simply was not documented, Dr. Ali’s ability to convince a jury of this was irretrievably lost when it was discovered that he had altered the chart. An incomplete chart is not good, but it certainly beats an altered chart.
Case #2. In Pisel v Stamford Hospital, et al,15 the medical record was altered, according to the Connecticut Supreme Court, in a "bungled attempt to cover up" the patient’s negligent care.16 At least in part because of this medical record alteration, the plaintiff was awarded $3.6 million, a huge verdict by 1980s standards and, at the time, the largest verdict ever returned in the state of Connecticut.
The decedent was a patient in the psychiatric unit of Stamford Hospital. She was "locked alone in a seclusion room in a highly agitated and psychotic condition, after having told the staff that she was hearing voices telling her to hurt herself."17 Approximately four hours after admission, "she was found in the room with her head wedged between the side rail and the mattress of her bed, unconscious, with no pulse, blood pressure, or respiratory function."18 Between the time of her admission and the time she was found in cardiopulmonary arrest, "no staff member entered the plaintiff’s room or had any personal contact with her to assess her mental condition or alleviate her agitation."19
Several days after the death of the patient, the medical record was intentionally altered at the direction of the director of nursing. The Connecticut Supreme Court’s description of the alteration and the inference that the trial court allowed the jury to draw from the alteration is instructive:
"A few days following the plaintiff’s injury, the director of nursing at the hospital ordered the entire staff who charted the plaintiff’s care to rewrite and change the hospital records pertaining to the care she received on the morning of January 24. The original record was surreptitiously removed from the chart and a revised’ record was substituted without the knowledge of the hospital administration and in violation of explicit hospital policy. The substituted record was demonstrably false and conflicted with other records and the testimony of staff members on duty that morning as to their actual observations. The revised record came to light after suit was commenced when a nurse not connected with the psychiatric unit brought to the attention of the hospital administration that she had been forced to rewrite a note on the original record. The trial court instructed the jury without objection that they could consider the substitution of the records as a circumstance indicating the defendant’s consciousness of negligence."20
Commentary: Italics have been used above for emphasis.
The Connecticut Supreme Court endorsed the trial court’s instruction to the jury as to the inference it could draw from the medical record alteration: "An allowable inference from the bungled attempt to cover up the staff inadequacies on the morning of January 24 was that the revision indicated a consciousness of negligence."21
Commentary: Improper alteration of medical records by health professionals is both unethical and unprofessional, not to mention illegal. Should there be any doubt as to the adverse consequences of inappropriately altering a record, cases such as these should adequately discourage the practice. If you want to transform a defensible case into a sure loser, alter the chart.
Falsification of the Medical Record
Closely related to the improper alteration of medical records in an effort to avoid liability is the intentional falsification of medical records for the same purpose. The potential consequences of intentional falsification of medical records are essentially the same as those from improper alterations of records.
Case #3. In Dimora v Cleveland Clinic Foundation,22 the Court of Appeals of Ohio considered a case where there was no "smoking gun" evidence that the medical record had been falsified, but there was credible testimony that, if believed, would tend to prove that this was the case.
On Nov. 5, 1993, the plaintiff, Mrs. Dimora, was preparing to be discharged from the Cleveland Clinic. After using the toilet with the assistance of a student nurse, she lost her balance and fell backward. The jury found that the Clinic was negligent in its care of Mrs. Dimora, who the Clinic knew was at high risk for falls and was, therefore, under the Clinic’s motion-related events protocol.
Our primary interest in the case is not whether the jury correctly concluded that the Clinic personnel had been negligent in their treatment of Mrs. Dimora because they failed to properly follow their motion-related events protocol. Rather, we will focus our attention on the allegation that the medical record was falsified. The allegation of falsification was supported by the fact that the physician’s discharge summary version of the patient’s condition at the time of her discharge was incompatible with other credible evidence as to the patient’s condition at that time. If such contradictory evidence were believed, the physician’s version in the discharge summary must have been false.
The doctor’s discharge summary stated that:
"Pt was in transport between walker and toilet seat according to student nurse. Pt was @ walker and lost balance backward. The SN acted by holding the pt from the L side and gradually lowering her to the floor, and called for help. Pt was lifted back into wheelchair. On exam, pt has full use of all 4 extremities with good strength and no pain with movement. A small 5 ´ 8 area on the pts R posterior thorax was slightly scraped. It was not tender to deep palpations and no crepitus was noted. There were no other lacerations, bumps, or abrasions noted. Head was atraumatic. The abrasion on the thorax was treated with lotion and ice. The pt was smiling and laughing pleasantly during the exam."23
Commentary: The italicized segments highlight the particular portions of the discharge summary which were alleged by the plaintiff to have been intentionally falsified.
The appeals court summarized the evidence presented at the trial that, if believed, tended to prove that the discharge summary had been falsified:
"At trial, the testimony presented by witnesses for the [plaintiff] indicated that the right side of Mrs. Dimora’s body was red, bruised and painful after the fall. Three witnesses testified that Mrs. Dimora was crying and in pain approximately forty-five minutes after the incident while she was still in the hospital. Testimony was offered that broken ribs would be painful upon deep palpitation [sic]. Pictures were offered into evidence indicating large areas of bruising on the body of Mrs. Dimora on the day after the event."24
In this case there was credible evidence that what was recorded by the physician in the discharge summary could not have been true. Whether this was because the physician never examined the patient, failed to appropriately examine the patient, or because of some other reason, we will never know. Whatever the reason for what appears to have been a clearly inaccurate summary of the patient’s condition, the result was undoubtedly that the entire medical record and those involved lost all credibility. The result was a judgment for the plaintiff.
Punitive Damages
An alteration of a medical record may result in the award of punitive damages, in addition to compensatory damages. As the following case illustrates, under Ohio law, for example, punitive damages may be awarded because of a medical record alteration, without regard as to whether the alteration caused actual harm to the patient or not. In some ways, this case reads more like a paperback detective novel than a medical record. The doctor’s attempt to conceal and mislead others about the events that occurred during his treatment of the patient became obvious when various copies of the patient’s chart were discovered and compared. As you read and consider the facts of this case, remember that no department of the hospital or physician’s office distributes copies of the patient’s original chart to more parties than the emergency department. They are given to the personal physician, referral physician, emergency department file, medical records, billing department, etc. If the "original" of the medical record has been altered and a copy of that record has already been sent somewhere, count on that unaltered copy showing up in the hands of plaintiff’s counsel at the most inopportune time. As you read the following summary of the facts, keep your eyes on page seven of Dr. Figgie’s office notes.
Case #4. In Muskovitz v Mt. Sinai Medical Center et al,25 the Ohio Supreme Court held that, because Ohio law allows the award of punitive damages in medical malpractice cases where "actual malice" by the defendant is shown, it was proper to allow an award of punitive damages in the case because of the defendant physician’s improper alteration of the plaintiff’s medical record: "An intentional alteration, falsification, or destruction of medical records by a doctor, to avoid liability for his or her medical negligence, is sufficient to show actual malice, and punitive damages may be awarded whether or not the act of altering, falsifying, or destroying records directly causes compensable harm."26
The case involved the conduct of the plaintiff’s physician "who failed to timely diagnose and treat a malignant tumor on [the patient’s] left leg and altered certain records to conceal the fact that malpractice had occurred."27 Our interest in the case is primarily in the physician’s alteration of the medical record and the consequences of that alteration, not the underlying malpractice.
The patient, Mrs. Muskovitz, was seen by the defendant physician, Dr. Figgie, on Oct. 2, 1986, at which time she complained of a lump on her leg. The physician examined her and found "a small calcified lesion along the tendoAchilles."28 He did not recommend a biopsy and reassured the patient that "nothing was wrong."29 Dr. Figgie was aware at the time of this visit that the patient had had tumors removed from the leg twice in the past a benign lesion in 1978 and a malignant dermatofibrosarcoma protuberans in 1984.
The patient was again seen by Dr. Figgie the following month, at which time she underwent knee surgery. The discharge summary after this admission again noted the existence of a mass on the patient’s Achilles tendon.
On Nov. 10, 1987, Dr. Figgie finally removed the mass on the patient’s leg. It was found to be an epithelioid sarcoma, a rare form of malignant soft- tissue cancer. Unfortunately, a subsequent bone scan revealed that there were metastases in the patient’s shoulder and femur.
Immediately following the diagnosis of cancer, the patient’s care was transferred to Dr. Figgie’s partner, Dr. John T. Makley, who specialized in orthopedic oncology. At the time of this referral, Dr. Makley received the patient’s original office chart containing seven pages of notes documenting the patient’s course of treatment from 1985 through November 1987. The patient was then referred by Dr. Makley to a radiation oncologist at University Hospitals. Unbeknownst to Dr. Figgie, Dr. Makley sent a copy of page seven of Dr. Figgie’s office notes to the radiation therapy department at University Hospitals. Page seven included the all-important office notes of Sept. 21 and 24 of 1987. It was this event that doomed Dr. Figgie.
In December 1987, Dr. Figgie, or someone on his behalf, requested that Dr. Makley return the original medical record to Dr. Figgie. By this time, Dr. Makley was the patient’s primary treating physician and Dr. Figgie was no longer directly involved in the care and treatment of the patient. The obvious implication was that Dr. Figgie requested the return of the original chart in order to alter it. The chart was sent by Dr. Makley’s secretary to Dr. Figgie’s office. Dr. Figgie’s secretary then sent a copy of the chart to the patient’s psychologist, Zev Ashenberg. Finally, in January 1988, Dr. Makley’s secretary requested that Dr. Figgie’s office return the chart to Dr. Makley. It was at this time that it was discovered that "the original chart had mysteriously vanished, never to be seen again."30
On Dec. 5, 1988, the patient died as a result of her cancer. A lawsuit alleging medical malpractice was subsequently filed and, as a result of information obtained during discovery, alteration of the medical record became an issue.
Dr. Makley was deposed on Jan. 30, 1989, and at that time he produced a copy of page seven of Dr. Figgie’s office chart. This copy was identical to the copy that was later recovered by plaintiff’s counsel from the University Hospitals’ radiation therapy department records. This copy contained the following typewritten entry dated Sept. 21, 1987:
"Mrs. Moskovitz comes in today for her evaluation on the radiographs reviewed with Dr. York. He was not impressed that this [the mass on Moskovitz’s left leg] was anything other than a benign problem, perhaps a fibroma. We [Figgie and York] will therefore elect to continue to observe."31
The photostatic copy also revealed that a line had been drawn through the sentence "We will therefore elect to continue to observe." Beneath the crossed out entry, Dr. Figgie had interlineated a handwritten notation: "As she does not want excisional Bx [biopsy] we will observe."32 It is not clear precisely when this alteration occurred although, because all copies of the record recovered contained this handwritten notation, it would have to have occurred prior to the time Dr. Figgie sent the original chart to Dr. Makley in November 1987.
Page seven also included a typewritten entry dated Sept. 24, 1987: "I [Figgie] reviewed the x-rays with Dr. York. I discussed the clinical findings with him. We [Figgie and York] felt this to be benign, most likely a fibroma. He [York] said that we could observe and I concur."33 At some point, Dr. Figgie had added a handwritten notation to the Sept. 24 entry, "see above," referring to the Sept. 21 handwritten notation that the patient did not want an excisional biopsy.34
Dr. Figgie was deposed on March 2, 1989. At his deposition, he produced records, including a copy of the critical page seven of the patient’s office record. Because his original chart had been "lost," the copy Dr. Figgie produced was a copy from the chart he had sent to Dr. Ashenberg, the patient’s psychologist. This copy did not contain the sentence "We will therefore elect to continue to observe." The sentence had apparently been deleted through the use of correction fluid on the original chart from which Dr. Ashenberg’s copy had been made. The deletion had been made "in a way that left no indication on the copy that the sentence had been removed from the original records."35
Commentary: Remember that the copy produced earlier by Dr. Makley, and the radiation oncology department’s copy, contained the crossed out entry.
According to the court, the obvious conclusion was as follows: "Therefore, it became apparent that the final sentence in the Sept. 21, 1987 entry had been deleted from Figgie’s original office chart sometime between November 1987 (when the radiation department obtained a copy of the record) and mid-December 1987, when Ashenberg [the psychologist] received a copy of the record from Figgie’s office. Presumably, that alteration occurred in December 1987 while the original chart was in the possession of Dr. Figgie."36
The altered chart contained the handwritten note by Dr. Figgie indicating that the patient was refusing a biopsy: "As she does not want excisional Bx [biopsy] we will observe."37 The original chart had, however, contained the typewritten notation indicating that it was Dr. Figgie’s decision not to biopsy the lesion: "We will therefore elect to continue to observe."38 This had been deleted using correction fluid while the medical record was in the possession of Dr. Figgie, the apparent motive being to enhance the "cover-up" of the fact that there had not been a timely biopsy because Dr. Figgie had never recommended it, not because the patient refused. The "cover-up" had apparently begun when Dr. Figgie crossed out his Sept. 21 typewritten notation indicating that he had chosen to "continue to observe," and inserted his handwritten note that the patient was refusing a biopsy. This was, of course, made all the more obvious by the fact that the original notes were all typed and the self-serving alterations were all handwritten.
In addition to altering his progress notes, there was evidence that Dr. Figgie had also altered his office secretary’s telephone logs in an attempt to blame the lack of a timely biopsy on the patient. For example, on Feb. 26, 1987, after the secretary’s notation that Mrs. Moskovitz had called about her foot and was coming in, he had personally penciled-in an exculpatory note: "Patient seen, refuses workup"39 On Sept. 11, 1987, there was a penciled-in notation that the patient had agreed to a workup of the lesion." Why this notation was added is not clear. The important point was that it was directly contradictory to the handwritten alteration made by Dr. Figgie to the Sept. 21 entry in his office notes, the infamous page seven.
In a deposition videotaped prior to her death, Mrs. Moskovitz claimed that she had never refused to have the tumor biopsied.40 In the face of 1) clear evidence that the medical record had been altered by Dr. Figgie in an apparent attempt to displace blame for the failure to biopsy from him to the patient; 2) no credible evidence that the patient had refused a biopsy (at least prior to Aug. 10, 1987); and 3) the fact that the original medical record was "lost" while in Dr. Figgie’s possession, it would be difficult to imagine a judge or jury not finding Mrs. Moskovitz’s testimony that she had never refused a biopsy more persuasive than Dr. Figgie’s.
On Dec. 20, 1989, the jury returned a verdict in favor of Moskovitz’s estate and against Dr. Figgie. The jury awarded $2 million on the survival claim, $1.25 million on the claim for wrongful death, $5,000 for funeral and burial expenses, and $3 million in punitive damages an award of more than $6.25 million after the death of an "elderly" woman.41
On appeal, the Supreme Court of Ohio upheld the verdict and allowed the jury’s award of damages, including the award of punitive damages, to stand. The court did reduce the punitive damages award to $1 million based upon a finding that Dr. Figgie’s net worth was somewhere between $2.1 million and $3 million. The court found that the award of $1 million would be sufficient to "send the message."42 The court found that conduct such as Dr. Figgie’s was "particularly deserving of punishment:" "Figgie’s conduct of altering records should not go unpunished. We should warn others to refrain from similar conduct and an award of punitive damages will do just that."43
While, in this particular case, it is likely that the plaintiff would have prevailed absent the medical record alteration, as the evidence was clear that the physician had recommended against biopsy of the lesion (certainly poor advice when viewed retrospectively), the award of the additional $3 million dollars in punitive damages was because of the medical record alterations made in an attempt to escape liability. The Ohio Supreme Court was clear in its holding that, in medical records alteration cases, the fact that the alteration did not itself cause harm to the patient did not make punitive damages unavailable: "An intentional alteration, falsification, or destruction of medical records by a doctor, to avoid liability for his or her medical negligence, is sufficient to show actual malice, and punitive damages may be awarded whether or not the act of altering, falsifying, or destroying records directly causes compensable harm."44 It is also important to remember that most states prohibit, as a matter of public policy, the insuring of punitive damages.
Criminal Sanctions
In addition to the civil sanctions that may result from the alteration of a medical record, including having to settle an otherwise defensible lawsuit, there may be criminal (or quasi-criminal) sanctions as well. Hospitals and other health facilities are required under federal and state law to maintain secure medical records. For example Michigan law provides that: "A health facility or agency shall keep and maintain a record for each patient including a full and complete record of tests and examinations performed, observations made, treatments provided, and in the case of a hospital, the purpose of hospitalization."45 The statute further provides that: "A hospital shall take precautions to assure that the records required . . . are not wrongfully altered or destroyed. A hospital that fails to comply with this subsection is subject to an administrative fine of $10,000."46
In addition to this administrative sanction, Michigan, like other states, provides for criminal penalties for the alteration of medical records. It is illegal in Michigan to intentionally or recklessly insert misleading or inaccurate information in a medical record: "[A] health care provider or other person, knowing that the information is misleading or inaccurate, shall not intentionally, willfully, or recklessly place or direct another to place in a patient’s medical record or chart misleading or inaccurate information regarding the diagnosis, treatment, or cause of a patient’s condition."47 If the misleading alteration is made intentionally or willfully, it is a felony.48 If the misleading alteration is made recklessly, it is a misdemeanor.49 Other states have similar statutes.
The statutes prohibit only alterations of medical records that are misleading. There is nothing wrong with supplementing a medical record, so long as it is done in the proper way. The Michigan statute, for example, excludes from the prohibition proper medical record supplementations which are defined as follows: "Supplementation of information or correction of an error in a patient’s medical record or chart in a manner that reasonably discloses that the supplementation or correction was performed and that does not conceal or alter prior entries."50
Case #5. In New York v Smithtown General Hospital et al,51 there was an alleged criminal falsification of the medical record. The individual defendants in the case were two orthopedic surgeons, an anesthesiologist and a registered nurse who were charged with "falsifying business records in the first degree (Penal Law, @ 175.10) in that with intent to defraud, they omitted to make true entries in required reports in order to conceal the crimes of unauthorized practice of medicine and assault."52
The case involved a total hip arthroplasty that was initially performed by two orthopedic surgeons. Present during the procedure was William MacKay, the general sales manager of the company that sold the prosthesis used in the arthroplasty. Nothing was apparently alleged to have been improper or unusual during the original procedure, however. Following the initial arthroplasty, the hip was found to be dislocated. It was the events that followed the discovery of the dislocation that led to the subsequent criminal indictments.
After the dislocation was discovered, the patient was taken back to the operating room where the original assistant surgeon unsuccessfully attempted to remove the prosthesis.
Commentary: It is not clear from the facts in the case why the hip could not simply have been reduced.
Mr. MacKay, the salesman, was called and he returned to the operating room where he was able to successfully remove the original prosthesis.
In an attempt to clean the cement out of the shaft of the femur in order to insert a new prosthesis, Dr. Lipton, the original orthopedic surgeon, fractured the femur. The result was, according to Mr. MacKay, a "mess."53 With the consent of Dr. Lipton, Mr. Mac-Kay then spent over three hours picking the cement out of the femoral shaft. "During this period Dr. Lipton walked away from the table and may have even walked out of the room at one time."54 After cleaning the femoral shaft, Mr. MacKay inserted a new prosthesis and repaired the fracture.
The court took note of Mr. MacKay’s lack of medical training: "Incidentally, Mr. MacKay had never attended high school or college and had no training in paramedical techniques. His knowledge came exclusively from reading orthopedic journals, looking at training films and from implanting prostheses in cadaver bones as a training exercise."55
Dr. Lipton and the other individual defendants were indicted under Section 175.10 of the New York State Penal Code which provides that: "A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." The court denied the defendants motion to dismiss the indictment because: 1) there was sufficient evidence that the defendants had falsified the operative report in that there was no reference to Mr. MacKay or the role he played in the second surgery; and 2) the apparent intent of the falsification was to conceal the underlying crime the unauthorized practice of medicine by Mr. MacKay. The court ruled that there was sufficient evidence presented to the grand jury that both elements of the crime had been violated and, therefore, the indictments would stand.
Commentary: There was no evidence introduced in this case that the patient was at all harmed by the participation of Mr. MacKay or that the ultimate result was anything less than satisfactory. Remember that, as was discussed in the June 1999 edition of ED Legal Letter (1999;6:50-51), false statements in medical records are potentially federal felonies.
Licensing Issues
Physicians and other health professionals may be subject to license revocation, suspension, or other disciplinary action based upon medical records violations (improper alteration, destruction, falsification, etc.). This may be because: 1) such conduct is a violation of the relevant licensure statute per se; or 2) a criminal conviction, related to medical records or otherwise, may be a violation of the licensing statute.
Case #6. In Weber v Colorado State Board of Nursing,56 the license of a registered nurse, Sherry Weber, was suspended by the Colorado State Board of Nursing. The Board alleged that she had violated numerous provisions of the Colorado Nurse Practice Act. Among the alleged violations was a charge that she had "failed to furnish medical records in a timely fashion to four of her patients."57
One of the defenses she raised was that a violation of the state medical records statute, which she allegedly had violated, did not constitute a violation of the state nursing licensure statute. That is, even if it were true that she had violated the medical records statute, it was not appropriate for the Board of Nursing to take action against her license under the nursing licensure statute. An administrative law judge upheld the action by the Board of Nursing, and she appealed to the Court of Appeals of Colorado. The appeals court upheld the administrative law judge’s decision that "the handling of records constitutes an integral part of the profession of nursing’ and an essential element of appropriate patient care’" and, therefore, suspension of her nursing license was appropriate.58
Commentary: A physician who has improperly altered a medical record can expect, at a minimum, an investigation by the state board of medicine. If the board is able to substantiate the allegation, significant discipline is likely to follow.
Lost Medical Records
The medical record is obviously the most important document in a medical malpractice case. Loss of the medical record, for whatever reason, can destroy a case that might otherwise be won, or at least settled for a modest amount. When a medical record turns up missing, the jury may infer that: 1) if the physician either had the record or had access to it, he or she must have been responsible for its disappearance; 2) the medical record was "lost" because the information contained therein was incriminating to the physician; and 3) the physician must have been negligent because, if the medical record supported a finding that care had been appropriate, the physician would produce the record.
In some states, the court may instruct the jury that, based upon the loss of the medical record, they may infer a consciousness of negligence on the part of the defendant physician.59 The law in this regard varies among the states. However, whether the jury is officially instructed that the inference is proper or not, the members of the jury more likely than not will make the inference.
Case #7. In Carr v St. Paul Fire Marine Insurance Company,60 the federal district court considered a motion for judgment n.o.v.61 after a jury had found for the plaintiff in a medical malpractice action. Only our more "mature" readers will likely recall the days when, in small community hospitals, a physician covered the hospital emergency room from home. While the specific facts of the case are a bit obsolete, the lesson is still, through analogy, relevant.
Prior to going to the hospital, the patient’s wife called the hospital to ascertain if there was a doctor present and was advised that a doctor was available. At that time, the emergency room personnel consisted of one LPN and two orderlies. After the arrival of the patient and his wife, the vital signs of the patient were taken by one of the orderlies, who conveyed the information to the other orderly to put in the medical record. The nurse in charge was the LPN. She was not in the room when the orderlies were taking the vital signs. The nurse conferred briefly with the orderlies and then, in accordance with the request of the patient, called the patient’s regular physician. She found that the patient’s personal physician was out of town for the weekend and unavailable until the following Monday.
What happened next was a matter of dispute between the parties. The nurse claimed that she offered to call the doctor on call for the emergency room, but the patient said that he would rather wait until his own doctor returned on the following Monday. The patient’s wife, however, testified that she and her husband demanded that any available doctor be called, but that the nurse failed to call anyone after being unable to reach the patient’s personal physician. In any case, the patient was discharged without ever having been evaluated by a physician.
The nurse was aware of the physical condition of the patient and that he was suffering from severe abdominal pain and had vomited prior to his arrival at the hospital. The nurse and the orderlies also were aware that the patient was "in pain and in need of relief, but relief was not afforded."62
Once home, the patient’s pain did not subside and, later that night, his wife called the hospital to have an ambulance sent to pick him up and transport him back to the hospital. Upon arrival back at the hospital, the patient was dead. The patient’s death was, based on limited information, determined by the coroner to be due to acute myocardial infarction.
The patient’s wife brought suit against the hospital alleging negligence on the part of the nurse and orderlies in failing to call a physician to see the patient. The medical record, such as it was, was not available at the time of the trial. The emergency room personnel testified that the patient’s vital signs had been "normal."63 However, they also testified that "the record of the examination of the vital signs was destroyed that night and [was] not seen by anyone other than the two orderlies [and] the nurse"64
The primary issue in the case was whether the nurse should have realized that a medical emergency existed and, therefore, should not have discharged the patient prior to examination by a physician. The jury found the hospital to have been negligent based on the negligence of its nurse and orderlies. The defense’s motion asking the court to reverse the jury’s verdict was denied. One of the bases for the defense’s motion was that the court had erred in allowing into evidence the fact that the medical record had been destroyed after the patient’s death. The court denied this motion, finding that "the jury had a right to consider the effect that [the medical record] destruction had in determining the actual facts."65 The court went on to say that "the jury certainly had a right to infer that the record, had it been retained, would have shown that a medical emergency existed and that a doctor should have been called and that more attention should have been given him than was given."66
Commentary: Whether it is legally proper or not, and in many states it is, when a medical record is missing, the jury will likely assume that the information in the record was incriminating to the physician and the physician had a hand in its disappearance.
Correcting the Medical Record
We all make errors when entering information into medical records. These range from simple errors like spelling to more significant errors, such as writing in the wrong patient’s record, entering the wrong laboratory or radiologic result in the medical record, etc. Even simple errors should be avoided as much as possible. Even non-substantive errors such as the misspelling of difficult medical terms may undermine confidence in the physician’s expertise and credibility. A jury will be particularly unimpressed by a physician witness who is unable to decipher something that he or she previously wrote in the medical record. Illegible handwriting by physicians is no longer a joke as the public is aware of the not infrequent serious errors that have resulted from poor physician handwriting (e.g., serious medication errors because of poor legibility on prescriptions).
While the best practice is to avoid, as much as possible, errors in the medical record, errors will occur and, when they occur, should be corrected. There are some generally accepted recommendations regarding the correction of medical record errors and each hospital or practice should have a policy regarding medical records corrections. Corrections should be made by drawing a single line through the incorrectly recorded information. There should never be an attempt to conceal the original entry, which should always remain legible. Erasure of a medical record entry or the use of correction fluid should never occur, with no exceptions. The correction should always be dated, timed, and signed (or initialed) by the person making the correction. The person making the correction should insert an annotation indicating the reason for the correction (e.g., "error," "wrong chart," etc.). If there is particular concern of possible future litigation, the correction should be initialed by another member of the staff.
Medical Records-Risk Management Suggestions
1. Medical records must include only truthful, factual infor mation.
2. Always prepare medical records in a timely and thorough manner.
3. Always store medical records in a confidential and secure place (especially if litigation is underway or anticipated).
4. Never intentionally enter false information in a medical record.
5. Make all entries in the medical record legible.
6. Avoid lengthy, defensive notes (especially in addenda).
7. Never criticize colleagues or physicians who previously treated the patient in the medical record.
8. Never delete anything in the medical record, whether by using an eraser or through the use of correction fluid.
9. Never alter a medical record so as to conceal its original content.
10. Late entries should be dated and timed, clearly indicat- ing that they are late entries and, if possible, why they were made (e.g., "error").
11. Corrections should be made by 1) drawing a single line through the incorrect entry; 2) entering the correct infor- mation; 3) dating and timing the correction; and 4) init- ialing or signing the correction.
12. If a lawsuit has been filed, or the situation is such that litigation is possible, the medical record should be segregated and kept under lock and key with strictly controlled access.
13. If a lawsuit has been filed, or it is likely that one will be, consult with legal counsel prior to supplementing the medical record.
14. Never remove items from the medical record once they have become part of the medical record.
15. Never destroy the medical record or any part of it. Medical records departments may destroy inactive records consistent with state medical record retention laws.
References
1. 425 N.E.2d 1359 (Ill. App. 1981).
2. Id. at 1362.
3. Id.
4. Id.
5. Id.
6. Id. at 1363.
7. Id.
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id. at 1366.
15. 430 A.2d 1 (Conn. 1980).
16. Id. at 15.
17. Id. (emphasis added).
18. Id.
19. Id.
20. Id. (emphasis added).
21. Id. at 15.
22. 1996 WL 596455 (Ohio App. 8 Dist.).
23. Id. at *6 (emphasis added).
24. Id.
25. 625 N.E.2d 331 (Ohio 1994).
26. Id. at 344 (emphasis added).
27. Id. at 335.
28. Id.
29. Id.
30. Id. at 336.
31. Id. (emphasis added).
32. Id.
33. Id.
34. Id.
35. Id. at 337.
36. Id.
37. Id.
38. Id.
39. Id.
40. Id.
41. Id. at 340.
42. Id. at 344.
43. Id. at 343.
44. Id.
45. M.C.L. § 333.20175(1).
46. M.C.L. § 333.20175(2).
47. M.C.L. § 750.492a.
48. M.C.L. § 750.492a(1)(a).
49. M.C.L. § 750.492a(1)(b).
50. M.C.L. § 750.492a(3).
51. 402 N.Y.S.2d 318 (1978).
52. Id. at 319.
53. Id. at 321.
54. Id.
55. Id.
56. 830 P.2d 1128 (Colo. App. 1992).
57. Id.
58. Id. at 1130.
59. Thor v Boska, 38 Cal.App.3d 558, 113 Cal.Rptr. 296, 301 (1974).
60. 384 F.Supp. 821 (W.D. Ark. 1974).
61. A judgment n.o.v. (judgment not withstanding the verdict) asks the trial judge to set aside a jury’s verdict. It’s basis is the argument that the jury’s verdict is not supported by the evidence adduced at trial and the judge should substitute his or her judgment for that of the jury. The standard for such a motion is quite high. It is not sufficient that the judge disagrees with the verdict. Rather, the jury’s verdict must stand, unless the judge can conclude that reasonable persons cannot disagree as to the facts or inferences drawn therefrom, and that the jury’s decision was contrary to these facts and inferences. Simply stated, the burden on the moving party for prevailing on such a motion is extremely heavy.
62. 384 F.Supp. at 827.
63. Id.
64. Id.
65. Id. at 831.
66. Id.
Physician CME Questions
17. Significant liability problems may result from:
a. surreptitious medical record alterations.
b. medical record falsifications.
c. inappropriate destruction of medical records.
d. all of the above.
18. Improper alteration or falsification of a medical record may result in:
a. punitive damages.
b. criminal prosecution.
c. both a and b.
d. none of the above.
19. Proper correction of a medical record should include:
a. erasure of the incorrect entry.
b. a single line through the incorrect entry.
c. obliteration of the incorrect entry with correction fluid.
d. backdating the correction to the time of the original entry.
20. Which of the following is incorrect?
a. When a lawsuit has been filed or is anticipated, always consult with competent counsel before supplementing the medical record.
b. Correction fluid should never be used in a medical record.
c. Corrections in the medical record should be dated.
d. Punitive damages are not available to plaintiffs in medical malpractice cases.
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