Legal Review & Commentary
Altering records: $75,000 in CA
News: A woman’s dentist, who had treated her nearly five years, found significant decay on one of her molars and recommended a root canal. She returned to her former dentist for a second opinion. He found that several teeth had decayed and needed to be removed. The new dentist allegedly altered medical records, and destroyed and modified evidence to bolster his counter claim that the decay had rapidly developed and had not been years in the making, thus not overlooked by him. The case was settled for $75,000.
Background: After being a regular patient of her family dentist, the 59-year-old woman moved to a different city and changed dentists. She became a regular patient and had routine checkups at least three times per year. He had treated her for four-and-a-half years when he discovered significant decay on an upper molar and recommended she have a root canal. Dissatisfied with the diagnosis and recommended treatment, she returned to her original dentist, who discovered severe decay of five teeth. He advised that all five teeth be extracted and replaced with a combination of a bridge and implants. The cost: approximately $15,000.
The patient contended that the defendant dentist failed to diagnose and treat the plaintiff’s root decay and failed to provide adequate cleanings and periodontal maintenance. She claimed the failure to properly care for her teeth during routine checkups allowed her gums to recede, exposing tooth roots that are less calcified than the enamel-covered coronal portion of the teeth and are more susceptible to decay. The plaintiff also maintained the second dentist destroyed some of her dental X-rays and postdated other X-rays so that it appeared that the decay’s onset and progression was extremely accelerated. The plaintiff’s expert cariologist (tooth-decay specialist) said the earliest X-rays, which were claimed to be missing, had been relabeled in pencil.
The plaintiff also contended the dentist altered her records by adding the words "periodontal screening" to the records of several of her visits. The hard copy of her medical record, obtained prior to litigation being filed, had no entries noting periodontal screening. During his deposition, the defendant testified that the entries were made on the dates of the office visits.
Contrary to his deposition, in which he stated he performed the plaintiff’s cleanings, she claimed the registered dental assistant performed her cleanings. If they included periodontal screenings, it was outside the scope of the dental assistant’s duties as only dentists and hygienists may, by law, scale teeth under the gum line.
The defendant maintained that the onset of the decay began between two visits: the visit in which he found the decay and the one immediately preceding it. This claim was consistent with the X-rays he produced as evidence. Two days after the defendant was served with the plaintiff’s Request for Admission and discovery sanctions relating to the medical records, the case was settled. At the settlement conference, the defendant indicated he would admit liability at trial to preclude the introduction of the alleged record alteration. The plaintiff received $75,000 in the settlement.
What this means to you: Altering a medical record, particularly to avoid a claim of medical negligence is generally grounds for disciplinary action by the professional’s licensing board and also generally is considered fraud. This is not to say that there are not circumstances that merit late entries and addendums to the medical record. But after-the-fact overhaul of the record is not customary practice, states Jane M. Koubek, special projects director at St. Anthony’s Health Care in St. Petersburg, FL.
In institutional settings, policies and procedures should safeguard against such blatant alterations. The same should be true for all health care pro-viders. At a minimum, late entries to a medical record should be signed and dated by the person making the entry. Late entries should be the exception, not the rule, and should only be made in emergencies, not in routine care matters, Koubek adds.
Medical records are the property of the health care provider, but the information contained in the medical record is the property of the patient. Even so, the release of such information should be done systematically and in accordance with patient confidentially laws and regulations in mind. In some jurisdictions, law prescribes the requisite steps. At a minimum, Koubek suggests, health providers should use a standard release form containing these elements:
- Signature and date block for the patient (or the patient’s guardian) requesting the record.
- Name and address of the health care provider/owner of the medical record.
- Full description of the information being requested, such as the time period requested and the specific information. For instance, a patient may only want the results of a blood test taken on a specific date as opposed to the entire record.
- Person(s) to whom the information is being disclosed.
- Purpose of the release.
- Period of time which the record information is valid. This is generally 60 to 90 days.
- The signature and witness of the person releasing the record.
As part of the medical-records process, all late entries and releases should be catalogued. Tracking information is critical, so what has been shared with others cannot be altered after the fact.
Reference
• Sharon Brundage vs. Wayne A. Mathe, DDS, d/b/a Hillside Dental Group. No. CV 46817, Tuolumne County, CA Superior Court.
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