Continue Reading: Part II – Altered Medical Records – Again
About a quarter of a century ago, when I was a young lawyer, I asked of my mentor, the late, great James Beasley, Sr., “What if the doctor alters the record before we receive it?” He replied, “We can only hope he does.” I quickly realized the significance of medical record alterations in malpractice cases.
Most people would be shocked to learn the frequency with which doctors and other health care professionals revise, rewrite, or purge records following the occurrence of an adverse event that is likely to result in a medical malpractice lawsuit.
Pennsylvania law specifically provides that record alteration constitutes “unprofessional conduct.”
Doctors are allowed to supplement their charts, provided that they clearly indicate that the entries are dated so as to reflect that they have been added after-the-fact. But when a physician alters a chart without post-dating the entry, he or she commits “unprofessional conduct.”
Alteration of Medical Records
In a medical malpractice action, identification of an alteration almost always destroys a defense, especially if the doctor lies about it.
Not infrequently, a physician with a guilty conscience will revisit a patient’s chart, add some self-serving revisionist account, and use the altered record as the centerpiece of the defense in a medical malpractice lawsuit. Because juries tend to repose far too much faith in the accuracy of physicians’ records, the exposure of an alteration quite properly undermines the integrity of the record and of the doctor, as well.
And that’s a good thing. A physician who alters a record (particularly a physician who lies about the alteration) makes three implicit declarations to a jury: (1) the doctor is not to be trusted, (2) the medical record is not reliable, and (3) the subject matter of the alteration was, in all likelihood, very important. Each of these implied declarations can be properly considered by a jury in a malpractice case precisely because they flow naturally from the act itself.
Since my fateful discussion with my late mentor, I have made it a point to inspect the original medical record in all of my medical malpractice cases.
Most lawyers would be surprised at what they miss when they only examine photocopies. In one case, I discovered that “white-out” had been applied to the original record so as to obliterate notations which were harmful to the defendant.
It is also important to carefully inspect the records of other physicians who may have a copy of your chart. A gynecologist who refers a patient to a breast surgeon for evaluation of a breast lump might also send the surgeon a copy of the chart. If, afterwards, the gynecologist decides to alter the chart, the surgeon’s file will contain a pristine copy of the unaltered records. Think this is a far-fetched scenario? It’s not; it happened to one of my clients in a case involving the delayed diagnosis of breast cancer.
This scenario occurs in other contexts as well. For instance, when a baby is transported to a neo-natal facility, the referring facility may provide the other facility with a copy of the patient’s then-existing hospital chart. About 15 years ago, I litigated an obstetrical malpractice case in which the obstetrician had altered his notes. He was unaware that the neo-natal facility already had a copy of his note in its unaltered form.
The tri-colored carbon forms used by many physicians provide opportunities to discover alterations. I litigated an obstetrical malpractice case in which two of the three carbons were different than the original. Each had found it’s way into a different doctor’s chart.
Electronic Records – Audit Trails
Today, carbon copies and handwritten notes are being replaced by electronic records. These records are designed to leave an “audit trail” which can highlight amendments and revisions. But irrespective of high tech audit trails, the old school investigatory rules still apply. Not infrequently, doctors will print and retain hard copies of electronic records. Any variance between any such record and its electronically-maintained counterpart demands investigation.
In my twenty nine years of practice, I have discovered a wide variety of alterations in a wide variety of cases. My colleagues have often remarked about the frequency with which I discover these irregularities. I explain to them that the discovery of record alterations requires the patience to simply plod through hundreds of pages of documents, and a willingness to accept the likelihood that most of the investigations will prove fruitless.