Physicians are legally obligated to maintain adequate and accurate patient medical records, whether they practice in a hospital or ambulatory setting. A permanent legal document, the medical record often serves as a critically important means of communication among healthcare providers concerning a patient’s medical history and course of treatment. The medical record also provides information that supports the need for a particular diagnostic test or type of treatment in the event of a reimbursement or utilization dispute.
From a risk management perspective, the medical record is a crucial factor in preventing and minimizing potentially adverse medical consequences. It is also a key element in defending malpractice claims and lawsuits since it documents the patient's history with which the physician began, the physician’s critical thinking in evaluating the current situation, the basis for the diagnosis and treatment the physician offered and prescribed, the sequence in which care was provided, the patient’s response to treatment, and any reluctance or failure by the patient to heed the physician’s advice. In contrast, a poorly maintained or improperly modified or altered record will be used to attack and undermine not only the physician’s diagnostic acumen and the appropriateness of the care that was provided, but also the physician’s credibility regarding what was discussed with the patient, including the patient’s reluctance or refusal to heed the physician’s advice. As such, the medical record has sometimes been referred to as the “witness whose memory is never lost.”
Common Pitfalls in Malpractice Litigation
Unclear, incomplete, or inaccurate record entries
It is critical to document contemporaneously the care offered, provided, or rejected as completely as possible, including the date, time and signature of the healthcare provider who is making the entry. Without dates and times, it becomes very difficult to establish timelines of care, either for reference by other healthcare providers or for use in malpractice litigation.
Beyond that, the absence of timely and accurate documentation provides the obviously dissatisfied plaintiff with the means to challenge the quality of care the physician provided during their relationship, including disputing the history that was given, potential diagnoses that were discussed, tests that were either ordered or suggested, referrals that were recommended or declined, etc. Leaving the documentation door open enables the unhappy plaintiff with a selective memory to retrospectively create issues and scenarios that never existed but which a creative lawyer and his willing expert can use to suggest that the physician did not, in fact, provide the care required under the circumstances.
In short, untimely, poorly maintained, incomplete, illegible or improperly altered medical records can be, and often are, used to suggest not only that the physician provided inadequate medical care, but also that he/she subsequently attempted to ”doctor” the treatment record to conceal that fact. Conversely, a timely, contemporaneously created and well-documented record can serve as the physician’s first line of defense in giving the lie to such claims.
Spoliation
The term “spoliation” generally refers to the destruction or concealment of evidence. In the context of a malpractice case, the concept can be a potent weapon used not only to compromise the defense of the medical case, but also to inflame the jury’s passions against the defendant physician.
The law requires physicians to ensure that medical treatment records accurately reflect the treatment or services provided. The law further specifies that corrections or changes to entries in such records may be made only where the change is clearly identified as such and then simultaneously dated and initialed by the person making the change.
It is illegal for a person to alter medical records with the intent to deceive or mislead anyone. The liability resulting from such an act may be civil, or in some cases, criminal. In a civil malpractice action, for example, the court may instruct the jury that if they conclude that the alteration was intentionally done to deceive or mislead anyone, they may infer that the physician altered the record because he/she believed the original would have been unfavorable to him/her in the trial of the case. Evidence of such alteration may also serve as the basis for the plaintiff asserting a separate and independent claim for fraudulent concealment against the physician seeking to recover both compensatory and punitive damages.
Spoliation may take the form of destroying the original record, of rewriting the original record, or creating a new and different record. It may also consist of erasing, obliterating or adding information to the original record after the original note was made. Although there may be times when a non-contemporaneous entry in a medical record is appropriate, the physician making such an entry should be certain to follow the rules whenever making such an addition or change.