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Patient records can help or hurt a physician in medical malpractice cases
Double-edged sword of information may even result in awarding of punitive damages by untrusting juries.
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 B. Sonny Bal |
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Physicians should be aware that patient medical records can be a double-edged sword in a malpractice lawsuit. If properly maintained with appropriate documentation of the facts of treatment provided and the reasoned logic behind the decisions made, medical records can be of great value in defending an allegation of substandard care. But, if poorly documented, questions as to why, or even whether, treatment was administered will remain in dispute.
When there is a suggestion that a patient may be contemplating a lawsuit and a medical record is reviewed, some physicians may be tempted to alter the files. The intent may not be to falsify it, but rather to supplement the content with more clarity, and some hindsight observations that might add to the record. Of course, it might also be possible that the record alteration is not based on benign intentions at all, but is merely an attempt to fraudulently add false information with the goal of making physician conduct more defensible.
A serious mistake
Herein, we would like to point out that alteration of the medical record in either of the above scenarios is a serious mistake. When a later alteration of a medical record is discovered, the jury will be made aware of it and the implication by the plaintiff’s attorney will almost certainly be that the alteration was intended to falsify the record in an effort to defend substandard care. As a result, the physician’s credibility, a crucial component of the defense of a lawsuit, will be seriously compromised.
Several data have shown that the judicial system in general – and lay juries in particular – is deferential to the professionalism and judgment of medical doctors. An altered medical record negates this presumption and may be a basis for the jury to award damages that are higher than the injury should merit, perhaps even in the form of punitive damages.
Civil deterrent
Such punitive damages are rare in medical malpractice cases; their role in civil litigation is to deter particularly egregious behavior that society wants to deter, and the constitutionality of this drastic remedy has been upheld by courts.
A recent decision of the United States Supreme Court, Exxon Shipping Co. v. Baker, cited a medical malpractice case, Moskovitz v. Mt. Sinai Medical Center, that illustrates the role of punitive damages in tort litigation. The latter case involved an alteration of a medical record with a subsequent award of punitive damages to support the proposition that, “The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct.”
Case example
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A brief summary of the facts of the Moskovitz case is as follows: The patient was treated for a mass on her leg; the mass was surgically removed and diagnosed to be a low-grade malignant dermatofibrosarcoma protuberans. About a year later, the patient was referred to an orthopedic surgeon for treatment of degenerative arthritis in her knees and the surgeon performed bilateral knee replacements.
The patient needed additional knee surgery over the next 5 months and had continuing complaints concerning the knees. Several months later during an office visit to the surgeon, the patient complained of a lump on her leg. The orthopedic surgeon examined her and documented “a small calcified lesion along the tendoachilles.” He did not recommend a biopsy of the lesion and reassured her that nothing was wrong. According to the records, the surgeon knew about the tumor that had previously been removed from the leg.
A few more months passed, and a decision was made to revise the right knee replacement, which had been problematic since implantation. Prior to this procedure, the patient was examined by a nurse practitioner who noted the presence of a firm nodule measuring 1 cm × 1 cm on the left Achilles tendon.
Following revision knee surgery, the patient was examined by a resident physician. A discharge summary prepared by the resident and countersigned by the orthopedic attending noted the existence of a “left Achilles tendon mass, 1 cm × 1 cm. Nodule.” The report indicated that the mass had been present for some time.
Another year passed, and the patient underwent surgery to remove the mass; the diagnosis was an epithelioid sarcoma. A bone scan revealed that the cancer had metastasized to the patient’s shoulder and right femur. The patient was referred to an orthopedic oncologist who received records from the orthopedic clinic and reviewed them. He referred the patient for radiation therapy, sending the medical records to the radiation department.
Lost charts
Some months later, the orthopedic surgeon, or someone on his behalf, requested that the oncologist return the original office chart. The oncologist’s secretary forwarded the chart to the orthopedic surgeon’s office, which then sent a copy of the chart to a psychologist who the patient had seen. Sometime later, the oncologist’s secretary requested that the orthopedic office return the chart and it was discovered that the original chart could not be located.
The oncologist ended up amputating the patient’s leg, and during the process of prosthesis fitting, the patient fell and fractured her contralateral hip. That injury turned out to be a pathologic fracture from cancer infiltration of the hip. The patient thereafter underwent chemotherapy until her death some time later.
Altered records
Subsequently, a suit was filed and the oncologist was deposed. At his deposition, the oncologist produced a copy of page seven of the orthopedic surgeon’s office chart. The copy produced contained a typewritten entry which stated the patient, “Comes in today for her evaluation on the radiographs reviewed with [another physician]. He was not impressed that this was anything other than a benign problem, perhaps a fibroma. We will therefore elect to continue to observe.”
However, the copy revealed that a line had been drawn through the sentence “We will therefore elect to continue to observe.” The copy further revealed that beneath the entry, the orthopedic surgeon had inserted a handwritten notation: “As she does not want excisional because we will observe.”
Copies made later showed that the orthopedic surgeon had obscured the statement, “We will therefore elect to continue to observe,” with correction fluid.
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Telephone logs from the secretary at the orthopedic surgeon’s office also contained an entry indicating that the patient had called the office complaining of pain in her left leg. The orthopedic surgeon had penciled in a notation stating that she refused to have the tumor biopsied.
Punitive damages
The jury viewed the patient’s videotaped deposition in which she claimed that she never refused to submit to a biopsy. After all the evidence was in, the jury awarded substantial damages on the survival claim, the claim for wrongful death, and for funeral and burial expenses as well as $3 million in punitive damages, which was reduced to $1 million on appeal.
The jury’s award of punitive damages was based entirely upon the orthopedic surgeon’s alteration, falsification, or destruction of medical records.
Following appeals, the state supreme court ultimately ruled that 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 in addition to compensatory damages whether or not the act of altering, falsifying or destroying records directly causes compensable harm.
A test
In light of that case and the courts’ decisions, we invite you to take a test. Are the following statements true or false?
1. Correcting an error in a medical record by altering the record after a malpractice lawsuit is filed may help the defense lawyer by simplifying the issues.
2. A jury may attribute alteration of a medical record in an attempt to cover up negligent care.
3. Punitive damages, if allowed in a malpractice lawsuit, are intended to compensate the patient for the medical negligence.
4. Destruction or alteration of a medical record by a physician may cause a jury to doubt the physician’s integrity.
5. Alteration of a medical record can only be demonstrated if the original record is available for analysis.
For more information:
- B. Sonny Bal, MD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
- Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.
Answers:
1. False
2. True
3. False
4. True
5. False