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Spoliation of Evidence: Detecting Tampering with Medical Records

Special offer: Order Medication Errors and Nursing Home Liability and save $20. Click on special offer for details.

See also Patricia Iyer's discussion of medical record tampering on The Common Law television show.

In the first case of its kind in the nation, a licensed practical nurse working in a Pennsylvania nursing home was criminally charged and sent to prison for attempting to cover-up a medication transcription error regarding a resident who later died. The former nurse was the first in her profession nationwide to go to prison for falsifying medical records, an act which contributed to the death of an 84 year old nursing home resident. The LPN was sentenced to 10 to 16 months in federal prison, and surrendered her nursing license.¹ more info about the case 

Spoliation of evidence

Whenever attorneys review medical records they should be alert to signs of tampering with the medical record. Tampering with the record involves any of the following: Adding to the existing record at a later date without indicating the addition is a late entry, placing inaccurate information into the record, omitting significant facts, dating a record to make it appear as if it were written at an earlier time, rewriting or altering the record, destroying records, or adding to someone else's notes.

Detection of tampering

Fraudulent addition to a record for the purposes of covering up an incident can be detected by current technology. Expert document examiners will need the original medical record in order to analyze it for tampering. This will enable them to detect differences in ink, look for indentations caused by writing on sheets above the questioned document, and perform chemical analysis of the document. There are clues used to detect altered records. 

The legal nurse consultant is an invaluable resource to the attorney who suspects tampering with medical records. Nurses are familiar with the information that should be recorded in the medical record and can quickly spot missing pieces, information out of order and inconsistencies in the medical record. For example, one hospital was asked to produce the medical record for a six-month admission. The patient was in an intensive care unit for several months. The hospital's medical records department failed to copy a few pages of the multipage critical care flow sheet that covered the first 24 hours after the patient was brought into the ICU. This time frame was critical to the case. Patricia Iyer spotted the omission because she was familiar with the information that should have been on the flowsheet and recognized that two shifts' worth of documentation was not copied. 

Understanding the chart based on common practice, facility policies, state and federal regulations is essential. There are strategies to detect tampering.

Implications of tampering

If the plaintiff can show that a defendant is guilty of spoliation of evidence, the burden of proof may shift to the defendant. When medical records are missing for unexplainable reasons, a plaintiff is at a disadvantage in the legal process and should not be prejudiced because of the missing records. Pages, sections and entire medical records have been known to vanish, as well as be altered or substituted.

Tampering with the records complicates the successful defense of a malpractice case and raises questions in the plaintiff attorney's mind about the quality of care that was rendered. "Practitioners sometimes try to cover up pure errors in judgment that are not negligent and not subject to recovery of damages. The appearance of cover-up is devastating in court. The changing of a record may require the defense counsel to settle the case out of court even if no negligence has occurred. Once the accuracy of the record is challenged, the integrity of the entire record becomes suspect. Plaintiff attorneys who have successfully proven that tampering has occurred have had some success in getting the statute of limitations extended based on the premise that fraud has been committed. When records are destroyed, the plaintiff attorney can request sanctions against the defendants for failure to comply with the orders to produce documents. The plaintiff attorney can argue in court that the records were intentionally altered or lost because of conspiracy or fraud. Successful arguing of "aggravated or outrageous conduct" can result in the granting of punitive damages. In Rosenblit v. Zimmeran, a plaintiff took a case to the New Jersey Supreme Court over whether evidence that a chiropractor altered records could be kept from the jury. 

Adding to an existing record at a later date

In reviewing medical records, the attorney may find incomplete records. One of the roles of the medical records department is to review the chart at the time the patient is discharged and to ask the physician to complete the chart. The doctor may be asked to sign telephone orders, dictate operative reports and discharge summaries and so on. This job is supposed to be completed within a specified time frame, usually 30 days after the patient has been discharged. Nurses are usually not asked to go through a medical record after the patient is discharged to "finish off" the chart.

Many hospital risk managers attempt to prevent tampering by securing the medical record after a patient has sustained an adverse outcome. The record may be locked in the risk manager's office. If this first line of defense fails (because there is no risk manager or the risk manager is unaware of the patient's circumstances) and the defendant is allowed to review the record, the temptation is high to alter the medical record. Healthcare professionals are taught that the correct way to add to an existing record is to document the time and date that the addition is being made. The addition should not be squeezed into an earlier entry but should appear on the next available line in the medical entry.

Placing inaccurate information into the record

False information in a medical record can sometimes be hard to detect after the fact. At times common sense or the clinical knowledge of a legal nurse consultant or expert witness will lead to the suspicion that the documentation is not entirely truthful. At other times, the plaintiff will convincingly assert that the information is inaccurate. In a Massachusetts case, the time the nurse notified the surgeon became a crucial issue. 

Omitting significant information

Omitted information on a flow sheet or a nursing form may be easy to spot. For example, some neonatal and pediatric flow sheets are set up with blanks to be filled in every hour to indicate that an intravenous site was examined for signs of infiltration. A flow sheet of this nature would be an important piece of evidence in a case involving a child with an intravenous associated injury. The deliberate omission of significant information may be more difficult to detect. Often common sense is applied to identify the information that is missing. In a New Jersey case the medication records were used to establish that the patient had extensive pain even though the nurses’ notes did not comment on the pain. 

Dating a record to make it appear as if it were written at an earlier time

Many people involved in malpractice litigation recognize that more tampering occurs in doctor's office records than in the hospital, where it is easier to spot an alteration. There are clues used by attorneys and expert document examiners to detect fraudulent dating of records.

Rewriting the record

One of the most damaging admissions occurs when a healthcare professional testifies that a medical record was rewritten. There can be completely innocent reasons why a medical record was rewritten. Occasionally a page from a chart will be recopied if it is torn or liquid is spilled on it. The appropriate procedure to follow when this occurs is to identify the page as rewritten. The original page should be retained in the medical record. The deliberate rewriting of a record with attendant changes in the content, timing, and sequence of events is tampering with the record. Pisel v. Stamford Hospital is frequently cited by attorneys when attacking the rewriting of records. 

Destroying medical records

The destruction of pages, sections or an entire medical record creates a strong suspicion that the information in the record was so damaging that it had to be concealed. Medical records are usually carefully safeguarded by the medical records department of a healthcare facility as well as the risk manager when an untoward event has occurred. When a record or pages of it disappear, part of the discovery process involves determining who had access to the record. Large portions of medical record disappeared in a birth injury case. 

Adding to someone else's notes

Even though it is unacceptable for one health care professional to alter someone else's documentation, it happens, and more commonly than attorneys would believe. Physicians have altered nursing records, and nurses have altered each other's notes. Physicians may be very casual about editing someone else's notes because of the practice of overseeing the documentation of residents. Risk managers are often involved when the alteration of medical records is discovered. The risk manager becomes involved in providing education to the person who has been discovered editing or changing another person's documentation.

Summary

Tampering with the records can have profound implications for the attorney. It will make the defense of a malpractice case difficult and the pursuit of a settlement easier for the plaintiff. The attorney who suspects that tampering has occurred needs to obtain validation of these concerns in order to make the appropriate strategic moves. Legal nurse consultants are helpful in detecting tampering with medical records.

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