Our Services: Medical records
Spoliation of Evidence: Detecting Tampering with Medical Records
Subsections
Clues to altered records:
-
writing crowded around existing
entries
-
changes in slant, pressure
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uniformity or other differences
in handwriting
-
erasure or obliteration
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use of different pens or typewriters
to write one entry
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misaligned typed notation, impressions
or lack of impressions from writing instruments on the following
pages
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ink offsets or lack of offsets
on the back side of the preceding page, and
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additions on different dates
written in the same ink, while original entries were written
in different ink4.
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Strategies
used to detect altered medical records
Compare the medical records with
the billing records.
Compare the medication administration
record with the nursing notes.
Look for obliteration of entries.
Compare the observations of the nurses
with those of the physician.
Detect changes in style of note writing
(for example, a longer note on the day of the incident).
Correlate staffing sheets/timecards
with the chart to detect documentation by staff that were not
present that day.
Look for entries which are out of
chronological order.
Omitted documentation may be detected
through interviews with ex-employees.
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In Rosenblit v.
Zimmerman (A-58/61-99), a registered nurse received several months
of treatment from Dr. John Zimmerman, a chiropractor. Rosenblit
claimed that the treatment caused neck pain, headaches, nausea
and ringing in her ears. She underwent surgery to correct an instability
in her vertebrae. When Rosenblit sued the chiropractor for medical
malpractice she obtained her medical records. They indicated that
she was not gradually improving and she was dissatisfied with
her condition when she last visited Dr. Zimmerman.
During discovery a second set of
records was produced which included a different report, which
indicated she was improving and was satisfied with the treatment
when she left his care. The chiropractor claimed that the second
chart was recopied off the original, which was subsequently destroyed,
and any differences were due to his attempt to make the record
more complete. Rosenblit subsequently amended her complaint to
include counts for spoliation and fraudulent concealment of evidence.
The trial court bifurcated the malpractice counts from the spoliation
and fraudulent concealment counts. All claims were tried by the
same jury, with the malpractice case proceeding first. Rosenblit
was not permitted to enter into evidence the chiropractor’s
alteration of the medical chart, unless it was to be used to impeach
the doctor’s credibility. Defense counsel did not call Dr.
Zimmerman to the stand and Rosenblit was barred from entering
the record alteration into evidence. The malpractice trial proceeded
with Rosenblit’s original chart being placed into evidence.
The jury returned a verdict in favor
of Dr. Zimmerman in the medical malpractice portion of the trial
and in favor of Rosenblit on the issue of fraudulent concealment.
The jury warded Rosenblit $421.75 in compensatory damages and
$500,000 in punitive damages. On remittitur, the punitive damages
award was reduced to $150,000. Rosenblit appeared, arguing that
the trial court should have permitted her to enter into evidence
Dr. Zimmerman’s record alterations. Dr. Zimmerman cross-appealed,
arguing that Rosenblit had the original unaltered documents at
trial and thus suffered no prejudice. The Appellate Division affirmed
both decisions in an unpublished per curiam opinion. One
judge dissented. The Supreme Court granted Rosenblit’s petition
for certification. Dr. Zimmerman appealed as of right based on
the dissent. The Supreme Court held that neither a claim for spoliation
nor a separate tort action is appropriate where the plaintiff
has uncovered the defendant’s concealment and obtained the
original unaltered record prior to trial. However, absent extraordinary
circumstances, evidence of intentional alteration or destruction
of medical records by a physician accused of malpractice should
not be excluded as prejudicial under N.J.R.E. 403. The
judgment of the Appellate Division was reversed and the matter
was remanded for a new trial5.
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A sixty year old
man went to the emergency room complaining of acute abdominal
pain. The defendant emergency room doctor promptly diagnosed a
leaking abdominal aortic aneurysm and told the nurse on duty to
notify the defendant surgeon. The surgeon allegedly did not arrive
on the scene for one hour. She called the operating room team,
but the anesthesiologist was not immediately available. The patient
went into shock and died after the surgery which was eventually
performed. The defendant surgeon alleged that she was not notified
as promptly as had been alleged, and that she arrived within twenty
minutes of notification. The defendant hospital was dismissed
before trial. There was some evidence that the medical records
had been falsified by the nurse on duty. The jury returned a verdict
for the defense. The court granted the plaintiff’s motion
for a new trial. Burley v. Marcia Gonzalez MD, Somnath Prusty
MD and Addison Gilbert Hospital6.
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In the following
New Jersey case, common sense was used to identify missing information:
The 89-year-old plaintiff was a nursing home patient who was a
quadriplegic. He contended that the nursing assistant negligently
placed a sports bottle full of extremely hot water in his hand
as his arms were folded over his chest. After the assistant left
the room the bottle spilled, causing third degree burns to his
chest, abdomen and the inner aspect of the right arm running from
under his axilla to the elbow. He maintained that despite the
quadriplegia, he had full sensation. Liability was stipulated
at trial. The defendant questioned whether the plaintiff was capable
of feeling pain, pointing to the absence of any record of such
pain in the patient's records. The plaintiff countered by pointing
out that the medication records at the nursing home reflected
the use of extensive pain killing medication. The patient's records
themselves did not contain a mention of pain and the plaintiff
argued that it was clear that the defendant's records were suspect.
The plaintiff was awarded $318,259 with $300,000 of that amount
for pain and suffering and permanent injury. Capers vs Atlantic
County, et al, Docket no. L-2637-947
Despite the absence of documentation
of pain in the patient's medical record, the medication records
were effectively used to establish the presence of pain
and suffering in this case. It is unclear as to why the nurses
did not comment on the patient's complaints of pain after the
burn, as this information would ordinarily be charted in the patient's
medical records.
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Clues to fraudulent
dating of records
-
Unnatural order of writing and
uniformity of handwriting, ink margins, and spacing
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Intersecting fountain pen entries
of different dates that bleed together
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Differences between pages as
to folds, stains, offsets, impressions, holes, tears, and
type of paper used
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Use of forms not in use at the
time of the purported time of entry
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Use of later year (1999 for 1996),
especially if it has been corrected several times4
The most successful method of determining
if a document actually was written on the date presented is the
comparison of other documents known to be written on that date.
Handwriting and/or signatures executed on both dates are utilized.
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Carol Ann Pisel
was admitted to a psychiatric unit designed for agitated patients.
A few days later the nursing staff failed to record an order for
antipsychotic medication, so the patient received none for three
days. Brain damage resulted from wedging her head between the
side rail and the mattress of the bed. A few days afterward the
director of nursing at the hospital ordered the entire staff who
charted the patient's care to rewrite the record relevant to the
monitoring of the patient before the incident. The original was
removed and the false copy substituted without the knowledge of
the hospital administration. The plaintiff won $3.6 million. When
the case was appealed, the Connecticut Supreme Court upheld the
verdict, saying the bungled attempt to cover staff inadequacies
indicated an awareness of negligence. Pisel v. Stamford Hospital,
430 A 2d 1 (CN 1980)8
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A twenty-five
year old woman was admitted to the hospital in her thirty sixth
week of pregnancy. Requiring treatment for pregnancy induced hypertension,
she continued to worsen. She died two weeks after delivery and
the baby suffered brain damage resulting in mild left sided paralysis.
The plaintiff claimed that the defendants were negligent in failing
to diagnose and treat the decedent’s pre-eclampsia and in
failing to deliver the infant in a timely manner. The defendants
contended that there were no hospital records available to prove
which physicians were responsible for the decedent’s care
because many essential records, such as physician’s progress
reports and medication charts, were removed from the decedent’s
chart. All of the defendants denied responsibility for her care.
A $2,250,000 settlement was reached9. Missing records
are always difficult to explain.
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The LPN
received a verbal order to reduce the resident's anticoagulant
(increases clotting time) medication. A short time thereafter,
the resident's condition worsened, and the LPN realized that she
failed to transcribe accurately the order to reduce the anticoagulant
medication. The LPN then falsified the resident's medical record
to indicate that the physician’s order had been implemented
correctly. It was this falsification of the medical record, not
the initial error itself, which formed the basis for the criminal
charges. The law used by the federal prosecutor to prosecute the
LPN had never been utilized in this way before. The federal law
was incorporated into the 1996 Health Insurance Portability and
Accountability Act (HIPAA) and precludes the making of 'false
statements' in a matter involving a federal healthcare benefit
program. The healthcare benefit programs that are usually involved
are the federal Medicare and Medicaid programs2.
The US Attorney Prosecutor David
Hoffman admitted that he chose this case to make a statement regarding
what he perceived to be a significant problem. He maintained that
medical records are 'routinely falsified' and that if such falsifications
are prosecuted as federal offenses, it will deter such behavior.2.
Attorney Hoffman said that the nurse took advantage of a defenseless
victim and the government needed to send a message that such behavior
will not be tolerated. "It is a betrayal of trust that thousands
of elderly people in nursing homes throughout the country rely
on. It is not OK to document care that was not provided."
The LPN cares for two adopted teenage sons and a 2 year old daughter.
She had just divorced her husband around the time she falsified
the records. Job related stress was difficult due to understaffing
at the nursing home, said her sister. Although her family begged
the US District Court Judge Franklin S. Antwerpen not to send
the LPN to jail, some violations of HIPAA result in a mandatory
prison term, leaving the judge no choice1.
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Spoliation
of evidence is the failure to preserve
property for another’s use as evidence in pending or future
litigation. Spoliation may also include the alteration or fabrication
of evidence to support one’s cause, defense, or claim.3
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References
1. Miller, R., Former nurse to serve
time for falsifying patient’s chart, Express Times, Easton,
PA November 2001, p. B1
2. Martin, R., Falsification of medical
records, Advance for Nurses, Greater Philadelphia, June
4, 2001, p. 44.
3. Herman, R and Herman, S., Understanding
spoliation of evidence, TRIAL, March 2001, p. 45
4. Nygaard D. and Deubner, S., Altered
or lost medical records, TRIAL, June 1988, p. 46
5. Syllabus prepared by the Office
of the Clerk of the New Jersey Supreme Court, Rosenblit v. Zimmerman
(A-58/61-99) decided 2/26/01
6. Laska, L. (Editor), Massachusetts
man dies after delay beginning surgery for a leaking abdominal
aortic aneurysm, Medical Malpractice Verdicts, Settlements
and Experts, March 1998, p. 13
7. Zarin, I. (Editor), $318, 259
verdict, New Jersey Verdict Review and Analysis, September
1995, p. 12
8. Creighton, H., Legal significance
of charting, part 2, Nursing Management, January 1983,
p. 47
9. Laska, L. (Editor), Massachusetts
woman suffered pre-eclampsia during pregnancy, Medical Malpractice
Verdicts, Settlements and Experts, September 1997, p. 28
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