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"Virtually impossible" to go undetected during litigation
In a case related to the alleged delay in providing care to a patient, an emergency physician (EP) was accused of altering the time that he ordered certain treatments for the patient.
"The handwriting in the chart was difficult to read," says Marcie A. Courtney, JD, an associate at Post & Schell in Philadelphia, PA. The plaintiff’s attorney suggested that the EP had originally documented the time that he wrote the order, then later tried to change that time by writing another time over it.
"Plaintiff’s counsel suggested that this was done in an effort to show that the patient received treatment earlier than he really had," she says. The EP denied altering the record, but a handwriting expert determined that there were, in fact, two times entered in the chart, one placed over the other. While these times were written with two separate pens, the expert concluded, they were written by the same individual.
"In addition, this expert was able to comment as to which time was written first and which was written second," says Courtney. These conclusions supported the plaintiff’s argument that there was a two-hour delay in providing care to the patient, and that this delay resulted in harm.
"Due to the fact that a jury would likely agree that the physician altered the records, and since the jury could conclude that the physician’s deposition testimony in this regard was not accurate, this matter was ultimately resolved out of court," Courtney says.
In another malpractice case, the plaintiff alleged that certain recommendations were written after the patient had been discharged from the ED and, therefore, were never disclosed to the patient. The handwriting expert determined that different writing instruments were used to document the re-commendations, and that they could have been written at different times.
This allowed plaintiff’s counsel to argue that the recommendations were never made to the patient, and this caused the patient harm. "This matter was ultimately resolved out of court, in part due to this potentially scandalous issue," says Courtney.
"Physicians may be tempted, following a bad outcome, to alter records," acknowledges James Scibilia, MD, a member of the American Academy of Pediatrics’ Committee on Medical Liability and Risk Management.
During a recent malpractice trial, the plaintiff’s attorney showed the jury the original medical chart, which had been altered by the physician in a later version.
"The appearance to the jury was that the physician was being deceptive and had missed something initially," says Scibilia. "This case, which would have been quite defensible, was settled with a sub-stantial reward to the plaintiffs."
It is virtually impossible for an EP to alter records and go undetected during litigation, emphasizes Courtney. "Due to the implications associated with altering the records, cases which are otherwise defensible may be settled," she says.
The audit trail, which is main-tained for all electronic medical records, documents the exact date and time that an EP enters information into a patient’s chart. "A plaintiff’s lawyer will be aware that this alter-ation occurred, and will pursue this aggressively during the physician’s deposition and throughout the litigation," says Courtney.
In Pennsylvania, if the plaintiff’s lawyer suspects that medical records have been altered or destroyed, he or she can request that the Court give the jury a spoilation of evidence charge. "This charge allows the jury to infer that the altered or destroyed evidence would have been unfavorable to the person who altered or destroyed it," Courtney says.
Further, a lawyer can use the altered medical records to convince the jury that the physician cannot be trusted. "If a jury does not trust or like the physician, the chances of a defense verdict diminish," Courtney says.
If a physician feels a need to add to a chart following a bad patient experience, this should be written as a new note, advises Scibilia. "These entries should be factual and clarifying, not emotional treatises on the physician’s own feelings," he says.
An EP might want to document that a patient was told to return to the ED immediately if certain symptoms worsened, but waited several hours to do so, for example, or the EP might wish to clarify history or exam findings. "The sooner this note is written the better, since it will appear that the note was placed prior to litigation being initiated," says Scibilia.
Writing an appropriately dated and timed addendum in the chart is acceptable if the EP feels that it is absolutely necessary, says Courtney. "However, during the physician’s deposition, plaintiff counsel will most certainly inquire as to why such an addendum was made," she warns.