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Spoliation of evidence and well documented ED records
By Jorge A. Martinez, MD, JD, Professor of Clinical Medicine, Program Director, LSU Internal Medicine/Emergency Medicine Residency Program, LSU Health Sciences Center, New Orleans, Louisiana
The medical record is an essential component of the physician-patient relationship. It is used to document the interaction between patients, physicians, and other medical and non-medical personnel. Without the medical record, it would be impossible to coordinate appropriate, timely, and continuous medical care.
It also serves as a medical and legal document that facilitates nonverbal communication between physicians and other healthcare professionals participating in the patient's care. Importantly, it details treatment plans and describes the patient's response to treatment; provides evidence for medical fees and hospital charges; provides data for hospital audits, peer review activities, quality assurance, and medical research; and functions as a tool in educating medical students, house officers, nursing, and paramedic students. It also helps resolve controversies and refutes or supports medical malpractice claims. 1
Because of its importance, any error correction on the chart must be addressed and noted appropriately. Documentation errors should be corrected by drawing a single line through the inaccurate statement. Importantly, the inaccurate statement should not be obliterated. White-out should never be used. The emergency physician (EP) should insert the corrected statement and sign his/her name and record the date of entry in the margin next to the corrected statement. Adding after-the-fact addendums should rarely occur. However, if necessary, the EP should note that the added information is a late entry, record the date and time of the entry, and limit the entry to the specific issue involved. The late entry should not eradicate any previously recorded information. Finally, medical records should never be removed from the hospital. Destroying or altering the medical record is "spoliation of evidence" and may subject the EP to civil and criminal liability. Two examples of spoliation of evidence are detailed below.
Spoliation of the Medical Record
Moskovitz v. Mt. Sinai Medical Center. In 1984, Moskovitz had a malignant tumor removed from her leg.2 In 1986, Moskovitz visited Dr. F complaining of a lump on her leg. He noted a small calcified lesion on her Achilles tendon. Despite knowing that Moskovitz had a malignant tumor removed from her leg previously, Dr. F did not biopsy the lesion. Instead, he reassured Moskovitz that nothing was wrong.
In early 1987, Dr. F removed the mass from Moskovitz's leg, which was diagnosed as an epithelioid sarcoma. A bone scan revealed that the sarcoma had metastasized to Moskovitz's shoulder and femur. In November 1987, Dr. F transferred Moskovitz's care to Dr. M, who requested that Dr. F send him Moskovitz's medical records. Dr. F sent Dr. M seven pages of Moskovitz's medical records documenting her treatment from 1985 through 1987. Dr. M referred Moskovitz for radiation therapy. He sent her seven-page medical record to the radiation department. In December 1987, Dr. F requested that Dr. M return Moskovitz's medical records.
In January 1988, Dr. M requested that Dr. F return Moskovitz's medical record. In doing so Dr. F's office manager discovered that Moskovitz's original chart had vanished. In February 1988, Dr. M amputated Moskovitz's leg. In October 1988, Moskovitz filed a claim of medical malpractice against Drs. F and M, claiming that both doctors failed to diagnose her cancer and that Dr. M amputated her leg unnecessarily.
In January 1989, Dr. M produced a copy of Moskovitz's medical record at his deposition. Moskovitz's attorney noted that Dr. F had added several handwritten notes to his typed entries, including a statement that Moskovitz did not want the mass biopsied. In March 1989, Dr. F was deposed and produced a copy of Moskovitz's medical record. Dr. F's copy of Moskovitz's medical record did not contain several of the handwritten statements that were in Dr. M's copy. Furthermore, Dr. F's secretary's telephone logs contained notations penciled-in by Dr. F that stated that Moskovitz continued to refuse a workup of her leg tumor. Weeks later, a page of Moskovitz's chart was recovered from the radiology department which revealed that the final sentence of Dr. F's original entry in September 1987 had been whited-out. Moskovitz's medical record was eventually reconstructed from various copies. It demonstrated that Dr. F had never recommended that Moskovitz undergo a biopsy of her leg mass and that he had altered the medical record in multiple places.
The Ohio Supreme Court found that "a cause of action exists in tort for interference with or destruction of evidence." According to the Court:
[Dr. F's] alteration of records exhibited a total disregard for the law and the rights of Mrs. Moskovitz and her family ... the jury was presented with sufficient evidence, which, ... supported the inference that records were altered, destroyed or concealed by [Dr. F] ... in an effort to conceal his medical negligence ...
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.
The Court concluded that punitive damages for the alteration, falsification, and destruction of Moskovitz's medical records was consistent with the law and the evidence presented at trial.2
Carr v. St. Paul Fire and Insurance Company. The wife of the deceased sued the hospital for the wrongful death of her husband after he was discharged from the ED.3 According to the facts presented at trial, when the deceased arrived at the hospital he was seen by an orderly, who took his vital signs and reported them to an LPN. He presented to the ED with vomiting, chest pain, and a history of diabetes. The deceased was evaluated and discharged from the hospital by the LPN without being seen by a physician. He later died from acute myocardial infarction secondary to severe atherosclerosis.
At the trial, the ED personnel testified that the deceased's vital signs in the ED were normal. However, they admitted that the deceased's medical record had been destroyed that night. They could not explain why it had been destroyed. The jury found that the hospital was negligent in the medical care provided to the deceased and awarded compensatory damaged to his wife.
The Court stated that:
The plaintiff was greatly hampered in proving just what was done by the employees and what their examination disclosed, and the jury had a right to consider the effect that such destruction had in determining the actual facts ... [T]he 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 to [the deceased] than was given.3
Guidelines for Documentation of the Medical Record
To avoid spoliation of evidence errors and to ensure proper documentation, ED staff should keep the following in mind when making notes in a patient's chart. The EP should review nurse and paramedical personnel notes and reconcile any discrepancies. In doing so, the EP should not engage in "chart wars" or use demeaning or judgmental language. Instead, the EP should document pertinent facts and observations that support his correction of staffs' notes.
In addition, the EP should reference all documents that are not an integral part of the medical record. For example, the EP should document that a patient signed a consent form for a procedure; or signed an Against Medical Advice form before leaving the ED.
Extraordinary situations that arise during the any encounter with the patient should be described in a factual manner without dramatic, condescending, or demeaning language. Important statements made by the patient, family, bystanders, or health care providers should be marked with quotation marks. Finally, the EP should refrain from the urge to make the medical record entertaining or cute.
Discharge instructions should be written on a specified instruction form in plain, simple language. They should provide the diagnosis; specific instructions for home care, work, and activity; and directions for timely and appropriate follow-up care. The EP and nurse should review the discharge instructions with the patient during a discharge conference. If the patient is unable to understand, the patient's representative should be given the information. The patient or representative should sign the discharge instruction form verifying that the instructions were discussed, understood, and given to the patient.
Also, it is important to remember that the ED medical record should chronicle the physician-patient encounter in detail. As such, it should routinely include:
The medical record must contain the individual's health history (supported by pertinent facts, findings and observations), physical examination, tests, treatment plan, and outcome of treatment.
In prolonged ED visits, the EP should repeat and reassess vital signs. The rule-of-thumb is that vital signs should be obtained at admit and at discharge. In addition, interval progress notes should detail patient reassessments and changes in clinical parameters. All actions taken to address clinical changes, as well as the patient's response to them, should be recorded.
Regulatory Agency Requirements for Medical Record Documentation
Dosages and Abbreviations. The Joint Commission for the Accreditation of Hospital Organizations (JCAHO) published a "Do Not Use" list, which lists abbreviations that may not be used in any handwritten patient-related material in a JCAHO accredited facility.4 These may help make chart notations more clear and help avoid misunderstandings. The recommendations may be familiar, but bear repeating here because of their importance to clear communication.
Prohibited abbreviations include:
According to The Joint Commission, the specific term for each abbreviation must be written. For example, a physician cannot write "25 mg of MS." Instead, the order must be written as "25 mg of morphine sulfate" or "magnesium sulfate." Likewise, a physician may not write an order for "12 U of insulin QD." The order must instead be written as "12 units of insulin every day."
Additionally, The Joint Commission forbids writing "X.0 mg" for a medication dose because the decimal point behind the number might be missed, leading to a dose ten times greater than the one ordered. Instead, all medication doses must be written as "X mg". Furthermore, a zero must precede a decimal point before a numerical dose of the medication. Thus, instead of ordering .3mg of versed, it must be written as 0.3 mg of versed. The intent is to assure that the decimal point preceding the dose is not missed.
In addition, The Joint Commission has proposed other abbreviations that should not be used in the medical record.4
Service Level Key Components. Proper documentation also is essential for correct billing. Therefore, it should be briefly mentioned that the Center for Medicare and Medicaid Services has established Evaluation and Management Service (E & M) levels which establish physician's fees based on the nature and complexity of physician services.5 The four E & M levels are problem focused, expanded problem focused, detailed, and comprehensive. Generally, each E & M level is based on the patient's condition and the type and place of the medical services. Each level requires specific information in the medical record to support physician fees for that level. The three key components of each level are the history, physical examination, and medical decision making.
1. American College of Emergency Physicians, Policy #400181, February 2002. http://www.acep.org/practres.aspx?id=29604. Accessed on 11/7/07.
2. Moskovitz v. Mt. Sinai Medical Center, 635 N.E.2d 334 (Ohio 1994).
3. Carr v. St. Paul Fire & Marine Insurance Company, 384 F Supp. 821, 831 (WD Ark 1974).
4. Phillips MW. Avoiding medical errors: JCAHO documentation requirements. J Am Dietetic Assn 2004;104(2):171-173.
5. U.S. Department of Health and Human Services. Centers for Medicaid and Medicare Services. http://www.cms.hhs.gov/center/physician.asp. Accessed on 11/7/07.