Medical-Legal Topics » Tampering with evidence

Plaintiff winner #4: Sexual assault

Pat Iyer — Mon, 15 Nov 2010 11:36:33 +0000

Sexual assault may be suspected by behavior changes

How do sexual predators gain access to vulnerable patients? They may come in the form of an employee, visitor, staffing agency employee, or patient. The healthcare facility is obligated to know who it hires to provide care. Criminal background checks are required to identify sexual predators.

We have seen cases involving the sexual assault of elderly men and women, critically ill patients and young females in a psychiatric facility. While some sexual assault victims can report the incident, the elderly confused nursing home resident may not be able to articulate what happened. We have seen sexual assault detected by physical signs:

semen in female urine specimens,
vaginal or rectal tears and bleeding,
fractures from resistance or assaults to subdue a patient,
bruising or rope burns, particularly on the wrists or ankles,
facial fractures, particularly of the teeth or jaw,
troubled sleep and disturbing dreams,
behavior changes when a certain person is around,
torn, stained, or bloody underwear,
injuries in various stages of healing, or that are not readily explained,
difficulty walking or sitting due to genital discomfort,
withdrawal, anxiety, depression

The data is only beginning to emerge for this population, but it is known that cases of sexual assault go unreported. The real extent of elder sexual abuse remains unknown. The importance of diligence of staff in identifying, reporting, and preventing occurrences cannot be understated. The nursing home population is very vulnerable for several reasons. A resident is dependent upon staff. Cognitive or functional impairment can result in a resident not being able to voice what happened or appropriately describe what occurred. Sadly, some residents mistake abusive caregivers for visitors-including a family member such as their husband or wife, or a suitor; they mistake the abuse for affection.

A Maryland woman was suffering from Alzheimer’s disease. She was allegedly raped by another resident, and additionally suffered physical assault on multiple occasions at the hands of other residents. After her sexual assault, she was taken to a hospital for a post-rape medical workup. She also suffered psychological injuries from her mental deficits. The plaintiff alleged the nursing home violated its standard of care in falling to provide adequate security to protect the patient from other assaultive residents and from herself. The defendant denied liability, but agreed to settle the case for $800,000.

A seventeen-year-old physically disabled female suffered posttraumatic stress disorder after she was raped by a nonparty while she was a patient in the defendant nursing home. The plaintiff contended that the defendant failed to appropriately supervise safety and security, and failed to provide the proper standard of care. The defendant settled in October 2001 for $1.5 million compensatory damages. The defendant denied liability. Plaintiff, pro ami v. Reliant/Care Four Seasons Nursing Home, MO, Petis County.

As many residents are cognitively impaired and unable to communicate what has occurred, nurses are expected to make careful observations, document behavior, and report any suspicions of sexual abuse to authorities and to the family. The nursing home should have protocols regarding the collection and preservation of evidence such as bed linens and the patient’s clothing. We were involved in one case in which the nursing home staff disposed of a bloody diaper and gave the resident a complete bath before sending her to the hospital for a rape examination. They rendered the evidence useless. We know of another case in which the husband of a resident sexually assaulted the roommate.

One prevalent misconception about rape is that it is sexually motivated. In the American culture, older people tend not to be considered attractive, so many people will ignore or disbelieve an older woman who says she has been sexually assaulted. The police are expected to involve a Sexual Assault Nurse Examiner (SANE), if available, to use the rape kit to provide evidence to the police.

Sexual assault cases pose proof issues. Many cognitively impaired residents cannot describe what happened. It may be impossible in some cases to determine the identity of the assailant. Nevertheless, the facility has an obligation to protect residents, screen out predators, and correctly report sexual assaults.

These cases often bring large verdicts because the fact patterns are so abhorrent to juries.

Plaintiff winner #3: Dropped during transfer

Pat Iyer — Thu, 11 Nov 2010 00:48:39 +0000

A delay in diagnosis of a fracture can result in significant pain and suffering.

The sound of a body hitting the floor can bring healthcare providers running. When the sound occurs when a nurse or aide drops a patient during transfer, the next sound may be, “Oh no.” This type of fall may occur if the staff do not use proper body mechanics, the patient is uncooperative, or the transfer requires more people that were actually used for the procedures. Taking shortcuts, cutting corners, and being rushed can spell disaster. The result may be a fracture, a head injury, paralysis and death. The situation is worsened when the staff member involved does not report what happened.

What drives the urge to cover up? Fear, guilt, and desperation may push the facts underground. In one case, two aides dropped a patient while transferring her into a Hoyer (hydraulic) lift. The patient suffered two fractured hips. The aides did not tell anyone for fear they’d lose their jobs. In another case, an aide tried to transfer a patient from a bed to a wheelchair, and the patient fell, fracturing her leg. The aide did not tell anyone what happened. Subsequent nursing staff observed the patient crying in pain, and the truth came out. In a third case, the fact that a woman’s leg was fractured became evident when her broken bone eroded through her skin.

In the absence of any documentation to explain how the fracture occurred, the defense may assert the fracture was a spontaneous one. This theory is based on the concept that bones may become brittle and fracture on their own. This is certainly true of patients who have cancer, hypoparathyroidism, Paget’s disease, and severe osteoporosis. However, spontaneous fractures of the hips are rare, and should stimulate a suspicion of trauma. The facility administrators need to perform an investigation to talk to the nursing staff involved in caring for the patient before the symptoms of the fracture were detected. An orthopedic surgeon and radiologist should review the x-rays to look for evidence of bone disease. The healthcare facilities need always be concerned that staff have adequate equipment and help to safely move patients.

In most cases, insurance companies will get out their checkbooks. These cases are usually indefensible.

Learn more about falls by checking out this value pack.

Pat Iyer is president of Med League and reviewed many cases involving falls during her career as an expert witness.

Plaintiff winner #2: Suicide in the Hospital

Pat Iyer — Mon, 08 Nov 2010 12:06:47 +0000

Suicide is the #2 most common sentinel event

Suicide in hospitals is more common than you think. The Joint Commission reports it is the second most commonly reported sentinel event with 816 events reported as of June 30, 2010. Most of these suicides occur in psychiatric hospitals, followed by general hospitals. Most people commit suicide by hanging. I recall hearing of a man who committed suicide on a medical surgical unit of the hospital where I worked. He hung himself from the pole in the closet. Other people commit suicide though a fatal fall. We have worked on several cases involving people who have jumped off the roof of the hospital. Other fatal falls involve falling down a staircase, balcony, laundry chute, or upper story window.

Healthcare providers are expected to be attuned to recognize the symptoms of suicidal intent. These include changes in eating or sleeping patterns, withdrawal, feelings of guilt or worthlessness, fatigue, feeling helpless and hopeless. Some individuals identify a plan to kill themselves. And some are at high risk for suicide: the unemployed, unmarried, substance abuser, the person with a history of previous suicide attempt, and having a mood disorder.

The liability issues center around whether the suicide was foreseeable and preventable. Here are some factors that influence that determination:

1. Was the environment safe? Did the facility use non-breakaway bars, rods or safety rails? We know of cases of patients who have committed suicide by putting plastic bags over their heads, hanging themselves from light fixtures, or opening windows to climb out.
2. Did the staff observe the patient to identify the risk of suicide, reassess the risk, and look for contraband if warranted? In one case, a man became very confused after surgery, kept climbing out of bed and pulling out his intravenous lines, and yet the nursing staff did not intensify monitoring. He threw himself through a glass window and died. The jury found the nursing staff negligent.
3. Did the staff make the required observations once the patient was recognized as being suicidal? We know of a case that involved falsified medical records: the checks of the patient were recorded as being made, but were not actually carried out. The case settled.
4. Were the staff adequately trained to recognize suicidal behavior and thoughts?
5. Was there adequate staffing to provide the needed care? In the case of the falsified records, the staff responsible for making suicide checks were pulled away to perform admission assessments.
6. Did staff communicate with each other about the risks of suicide?
7. Was the patient placed in a location where he could be observed? In another case, a man waiting to be admitted to a psychiatric hospital was sent to the x-ray department by himself, and climbed a staircase to the roof of the hospital, where he jumped to his death. The defense won this case.

Healthcare providers have the duty to protect the vulnerable. The suicidal patient fits squarely within that definition. In most cases, insurance companies will get their checkbooks. These cases are hard to defend.

For more information, see our teleseminar, Death in Seclusion or Restraints, read More than the Blues and Risk of Stroke Increases in Hopelessness.

Pat Iyer is president of Med League. She has testified in cases involving suicide.

Pat Iyer’s 9 tips on detecting altered medical records Part 5

Pat Iyer — Mon, 12 Jul 2010 11:34:35 +0000

• Examine logs or communication books kept at the nursing station of some nursing homes. I found a note in a nursing home communication book that stated, “When you recopy the nurses’ notes, leave enough room for the night shift to describe the fall.” The case settled soon thereafter.
• Obtain billing records to determine if care was charged for but not documented. Medical coding and billing errors pop up from time to time. A record of an office visit may have been removed from the file, but the billing record verifies that the patient was seen.
• Sometimes there will be a dispute over when or how frequently a patient was treated and what diagnosis was made by the physician at that time. These disputes can often be resolved by requesting a copy of the medical insurance company’s records and comparing the billing records and diagnosis codes with the doctor’s records.
• Evaluate the hospital or nursing home’s staffing records to determine if the people who have documented in the medical record actually worked that day.
• Look for any documentation in the file indicating when the chart was copied and to whom it was supplied. Request copies of the chart from these entries and compare the two sets.
• Request a copy of the facility’s policy on documentation.
• Request the policy on incident reports.
• Request copies of physician office scheduling books to determine when the plaintiff was supposed to have been seen in the office.
• Request records of companies employed to act as answering services for physicians.

Modified from Roy Konray and Pat Iyer, “Tampering with medical Records, in Pat Iyer and Barbara Levin (Editors) Medical Legal Aspects of Medical Records, released in March 2010, for more tips.

Pat Iyer’s 7 tips on detecting altered medical records part 4

Pat Iyer — Wed, 07 Jul 2010 11:26:59 +0000

• Look for the “too good to be true” pattern of documentation. For example, the patient was steadily losing weight but supposedly consuming 100 percent of his 2000 calories per day diet.
• Note entries that are self-serving and needlessly explanatory of the events that occurred. 50
• The medical record examiner needs to look not only at the content of the records but also at the extraneous details of the whole record. Psychologists have long observed that people normally focus on the overall message without seeing the details. The astute record examiner needs to step back from looking at the overall content and, as a separate step in the review of the records, focus on extraneous details.
• Look at the bottom of a questionable form to see if the facility has a date of printing on the form. Compare the date of the form with the date of the entries.
• Determine the meaning of codes at the bottom of a form. For example, a progress note was supplied to an attorney in discovery by a physician being sued for medical malpractice. The preprinted form on which the doctor kept his notes contained a code (0595) and the manufacturer’s telephone number. A quick call to the stationery company that created the form revealed the code was actually the date the form was created. The physician was caught in a flagrant lie with no way to explain how an “original” progress note from 1994 could end up on paper manufactured in May of 1995.
• Always ask to examine the original records. Often, codes appear on the back side of a page. The examiner needs to review the original in order to determine what codes are applicable to both sides of the page. Also, if there is no written entry on the back side of the form, it is not normally copied or supplied in discovery even though it may contain preprinted codes. The person doing the copying normally views a page without handwritten or typed entries as a blank page and will not copy it.

Modified from Roy Konray and Pat Iyer, “Tampering with medical Records, in Pat Iyer and Barbara Levin (Editors) Medical Legal Aspects of Medical Records, released in March 2010, for more tips.

Pat Iyer’s Dirty Dozen Tips for Detecting Altered Medical Records Part 3

Pat Iyer — Mon, 05 Jul 2010 12:14:59 +0000

• Examine handwriting to see if there are obvious changes in the appearance of the writing within an entry. Another thing to look for is a change in style. If notes are sloppily written and suddenly a page of neatly written notes appears from the same author, this may be a sign that the page has been rewritten at a later date.
• Look for red flag notes. Sometimes the individual will leave a note behind that states that a record has been changed. For example, a medical record included a page that contained a handwritten note that stated, “Phyllis, substitute this page for the evaluation completed 5/6/04.” The page was copied with the handwritten note on top of the clinical record.
• Be aware of a typed entry that follows handwritten entries, or vice versa.
• Look for discrepancies from the type of charting that is required by regulations and facility policy.
• Look for an excessive number of late entries, especially involving circumstances surrounding the act or injury in question. Examine the timing of the late entry. Sometimes the healthcare professional adds a late entry after learning of a problem. Review the chart to see if there were other intervening opportunities for the healthcare professional to add the late entry before the time of discovery of a problem.
• Look for words that are squeezed into an entry.
• A half sheet instead of a full page of a medical record may be found. Careless photocopying could have occurred, but it is also possible that the page was cut or folded over to hide information.
• When reviewing the original medical record, look for a photocopy of a page that has replaced an original.
• Look for obliteration of entries. Was correction fluid or heavy marker used to cross off entries?
• Review the original record to detect different color ink used within the same entry. This will not show up on a photocopy unless a heavy felt tip pen is used as one of the writing instruments. Even a slight change in the color of the ink suggests that two different pens were used to create the record (the implication being that one part of the record was added at a later date).
Compare the family’s photographs of the patient with the medical records. Are there pressure ulcers in the photographs that are not described in the medical records? Are the patient’s tongue and teeth green with mold, but the medical records document daily mouth care?
• If photographs of a pressure ulcer are available ask a clinician to compare the stage of pressure ulcer in the photographs with what is documented in the medical records.

Modified from Roy Konray and Pat Iyer, “Tampering with medical Records, in Pat Iyer and Barbara Levin (Editors) Medical Legal Aspects of Medical Records, released in March 2010, for more tips.

Pat Iyer’s Dirty Dozen Tips for Detecting Altered Medical Records Part 2

Pat Iyer — Wed, 23 Jun 2010 12:13:18 +0000

• Compare the nursery records generated at birth with those sent to the hospital to which the baby is transferred.
• Review the copies of hospital records found within a physician’s office records with those supplied by the hospital.
• In most hospitals, the mother’s labor and delivery record is normally copied and placed into the newborn’s chart. The copy from the mother’s chart must be closely compared with the copy from the newborn’s chart in order to see if there are any added additions to a set of records.
• Often, copies of a record are supplied to others in the ordinary course of treatment long before a problem or an attorney appears on the scene. The record examiner should not assume that the records supplied in discovery are identical to the ones supplied to others before a problem manifested itself. It is not unusual for a doctor referring a patient to a specialist to send a copy of the patient’s chart to the consulting doctor. Likewise, when a patient changes providers, a copy of the first doctor’s chart is sometimes sent to the subsequent treating doctor. These records need to be closely compared to see if there are any additions.
• Compare the letters and reports written by physicians when they are found in more than one set of records. Are the letters identical or does one set of records contain fewer or different reports?
• Compare the set of records obtained by the plaintiff prior to litigation with the set provided after the plaintiff’s attorney requested the records.
• Compare the set of records obtained early in litigation with those obtained shortly before resolution of a claim.
• Compare a set of records supplied to the plaintiff with those supplied to a regulatory agency.
• Observe for new entries added to later copies of the record, or pages that are missing from the first set of records. Look for additional pages that were not supplied with the first request for records.
• Look for a stamp or mark (usually on a face sheet) that indicates that the chart was kept under the control of the Risk Management Department or the Health Information Management Director’s office. This indicates that restricted access to the chart was in place. This has likely occurred because of an unexpected outcome or a suspicion of wrong doing.
• Note descriptions of the patient that may reveal antagonism between the patient and staff. A bad clinical outcome may lead to the temptation to alter records.
• Note finger pointing or blaming of other staff members or professionals after an incident occurred.

Modified from Roy Konray and Pat Iyer, “Tampering with medical Records, in Pat Iyer and Barbara Levin (Editors) Medical Legal Aspects of Medical Records, released in March 2010, for more tips at www.medleague.com.

Pat Iyer’s Dirty Dozen Tips for Detecting Altered Records Part 1

Pat Iyer — Mon, 21 Jun 2010 12:03:12 +0000

• Determine if the entries are in correct sequences and the date is within the correct time frame. For example, a physician recopying an office note may inadvertently use the year that the change is being made, rather than the right year for the chart entry.
• Search for discrepancies in dates. Entries may be inconsistently dated. Information may be added to a form out of sequence. For example, one medical record included a page listing the nursing home resident’s medical diagnoses, followed by the dates of the care planning sessions. The sheet contained the diagnosis of fractured hip, which occurred in June 2009. Yet the care planning sessions were documented as having occurred in May 2009. The form did not indicate that the hip fracture diagnosis was entered after the May 2009 session.
• Examine the chart for discrepancies in times or entries that are not in the correct chronological order.
• Look at the dates when treatments or medications were ordered versus the dates they were documented as having been given. For example, in one chart, the wound care sheet included an entry on 1/22/09 that antibiotics were started for a foul smelling pressure ulcer. In reality, the order for antibiotics was not written until 1/25/09.
• Create a chronology of care with the dates of admission and discharge. Look to see if care was charted after the patient left the facility.
• Look at the medication records to determine if medications were charted as being administered after the patient left the facility. Note if the patient’s medication administration record shows that oral medications were being administered when the patient was supposedly comatose and unable to swallow.
• Compare the condition of the patient on days of transfer from one facility to another. Look for discrepancies in the description of the condition of the patient. For example, a pressure ulcer’s presence may be ignored in a hospital chart but documented in detail when the patient arrives at a nursing home.
• Compare the observations of the physicians with those of the nurses. Are they consistent?
• Observe for any handwritten entry made by someone who significantly erred in treatment, particularly if the entry is at odds with the rest of the chart.
• Examine the typical way in which the healthcare professional documents. Are notes usually brief but become extensive on the day of an incident?
• Compare a set of original medical records with that supplied to the attorney. Use self-sticking tabs or notes to indicate when documents need to be copied or examined further. Always make a list of records that have been requested to verify that everything has been received.
• Whenever two sets of records are located, compare them. For example, compare the prenatal chart kept by the obstetrician with the prenatal records sent to the hospital prior to the labor and delivery.

Modified from Roy Konray and Pat Iyer, “Tampering with medical Records, in Pat Iyer and Barbara Levin (Editors) Medical Legal Aspects of Medical Records, released in March 2010, for more tips.