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Spoliation of Evidence: Detecting Tampering with Medical
Records
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.
References
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