1 Staying Out of the Rabbit Hole By John Zen Jackson and Ann Marie Vaurio The Entanglements of Altered Medical Records O, what a tangled web we weave, When first we practise to deceive! Sir Walter Scott, Marmion, Canto XVII Risk management professionals and medical liability defense counsel consistently utter a mantra regarding the importance of keeping medical records and documentation. A good medical record is key to a good medical defense in malpractice litigation. Good documentation provides a durable, contemporaneous record of what happened in terms of history, examination, assessment, and treatment. It also provides a framework for the retrospective evaluation of the health care professional s judgment, a riskbenefit analysis, and the patient s participation in and consent to the treatment plan. Even when a decision- making error results in an adverse outcome, there is substantial empirical support that if the reasoning is articulated and the justification for an intervention appears reasonable, the case can be successfully defended. While the aphorism if it isn t written down, it didn t happen at first appears grounded in common sense, it is nonetheless an overstatement. Unfortunately, the notion that an unrecorded event will be assumed to have not occurred has pressured physicians and other health care professionals to engage in problematic and dangerous behavior altering medical records. To speak of altering records implies inappropriate tampering. As we will discuss below, some circumstances might warrant adding to or correcting an entry in a medical chart. But even those types of alterations or corrections can create serious problems in a medical malpractice case. Defense counsel can have an important role in helping physicians to recognize distinctions and avoid potential legal problems. The alteration of medical records can take many forms. It can consist of adding truthful information at a later date or placing inaccurate information into a chart after the fact. A record may be dated to make it appear that it had been written at an earlier time. Substitute pages may be created. A record may be destroyed. There are a variety of legal entanglements that may follow this behavior. None of them are good. Discovery of altered records can occur in a variety of ways. Copies of medical records are often made for insurance or reimbursement purposes and distributed John Zen Jackson is a member of the DRI Medical Liability and Health Care Law Committee. He is certified by the Supreme Court of New Jersey as a civil trial attorney and is a principal of the health care law firm of Kalison, McBride, Jackson & Robertson, P.C., in Warren, New Jersey. Ann Marie Vaurio is special counsel to the firm DRI. All rights reserved. For The Defense n July 2010 n 57
2 before a lawsuit is even contemplated, and these copies can surface after a lawsuit has been filed and the altered documents have been produced in discovery. Document examiners can inspect paper and ink, using sophisticated electronic equipment to determine the age of the ink and the paper and sometimes finding that the materials were not even available when a Record tampering complicates a successful defense of a malpractice case and raises questions about the quality of care that a physician rendered. chart entry was supposedly made. Forensic experts readily detect changes made to medical records kept on computer disks. In New Jersey and elsewhere altering a medical record can constitute a criminal act and violate several, different laws. The criminal statutes generally focus on fraudulent and purposeful conduct. For instance, in New Jersey a person commits the offense of tampering with evidence when he or she alters, destroys, conceals, or removes any record or document with purpose to impair its verity or availability, believing that an official proceeding which includes a judicial proceeding such as a lawsuit is pending or is about to be started. N.J.S.A. 2C:28-6. One statute specifically addressing medical records states that the alteration must be done in order to deceive or mislead any person as to information, including, but not limited to, a diagnosis, test, medication, treatment or medical or psychological history, concerning the patient. N.J.S.A. 2C: See also State v. Amabile, 2006 N.J. Super. Unpub. Lexis 116, 2006 WL (N.J. Super. Ct. App. Div. 2006) (optometrist falsified patient records to defraud insurance companies). Health care claims fraud sometimes involves medical records alteration. N.J.S.A. 2C: When false 58 n For The Defense n July 2010 records are used in connection with reimbursement claims, the provisions of the Insurance Fraud Prevention Act may be invoked. N.J.S.A. 17:33-1. This provides for treble damages and civil monetary penalties, as well as the assessment of attorneys fees and costs. In addition, the Federal False Claims Act, 31 U.S.C. 3729(a)(1)(B) and (G), and the recently enacted New Jersey False Claims Act, N.J.S.A. 2A:32C-3(b), may be triggered when false records and governmental sources of reimbursement are involved. These also provide for the enhanced recovery of treble damages and civil monetary penalties for each violation. Criminal conviction, especially a conviction involving the practice of medicine, places a physician s licensure at risk. N.J.S.A. 45:1-21(f). But even without criminal entanglement, this type of conduct alone can result in disciplinary proceedings and licensure action by a state s board of medical examiners. In 1976, a surgeon in New Jersey was charged with murdering patients with curare. The deaths had occurred nearly a decade before. Although the surgeon was acquitted of the criminal charges, his New Jersey license was revoked. The board of medical examiners found that he had made false entries in operative reports for the purpose of self- protection. At the time, the board had no regulations specifically dealing with record keeping. It concluded that the surgeon s false entries demonstrated a lack of the good moral character required for continued licensure. The revocation was upheld on appeal to the court. In re Jascalaveich, 442 A.2d 635 (N.J. Super. Ct. App. Div. 1982). In its opinion the appellate court emphasized that the physician tampered with the integrity of a patient s medical records: We are persuaded that a physician s duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth and reliability of the patient s medical record. His obligation in this regard is no less compelling than his duties respecting diagnosis and treatment of the patient since the medical community must, of necessity, be able to rely on those records in the continuing and future care of that patient. Obviously, the rendering of that care is prejudiced by anything in those records which is false, misleading or inaccurate. We hold, therefore, that deliberate falsification by a physician of his patient s medical record, particularly when the reason therefor is to protect his own interests at the expense of his patient s, must be regarded as gross malpractice endangering the health or life of his patient. Id. at 645. The New Jersey State Board of Medical Examiners now has a regulation explicitly requiring practitioners to maintain accurate and contemporaneous records. N.J.A.C. 13: This regulatory requirement has periodically been a source of disciplinary action. See, e.g., In re Perera, 2009 N.J. Super. Unpub. Lexis 930, 2009 WL (N.J. Super. Ct. App. Div. 2009). See also In re Zahl, 895 A.2d 437 (N.J. 2006). In addition to impacting a medical malpractice case, altered records can become the basis for a claim for the tort of spoliation for fraudulent concealment if the alterations deprived a patient of proof for a claim for improper treatment. Rosenblitt v. Zimmerman, 766 A.2d 749 (2001). The spoliation claim may expose a medical practitioner to punitive damages. Finding and exposing an alteration in medical records is a significant and dramatic event in litigation, especially in connection with medical malpractice claims. Unsurprisingly, this so-called badge of fraud can drastically affect witness credibility. Record tampering complicates a successful defense of a malpractice case and raises questions about the quality of care that a physician rendered. Indeed, it may place a physician s presumed defense with an insurance- assigned attorney in jeopardy. Some professional liability insurance policies contain provisions that would void coverage if there had been records alterations. Compare Eastern Dentists Ins. Co. v. Lindsay, 2004 Mass. Super. Lexis 345, 2004 WL (Mass. Super. Ct. 2004) with Eastern Dentists Ins. Co. v. Jones, 74 Pa. D&C 4th 244, 2005 Phila. Ct. Com. Pl. Lexis 305 (Pa. C.P. 2005). Given that malpractice coverage is mandatory, it is unclear, if an insurer of New Jersey physicians can rescind coverage once a physician submits an insurance claim. In any event, an insurer will not very likely renew coverage when it must pay to settle a case because a physician altered a record.
3 Deliberate falsification unfortunately does occur. One particularly egregious example involved the death of a young psychiatric patient who was placed in a seclusion room in a highly agitated and psychotic state. A few hours later she was found in the in the room with her head wedged between the side rail and the mattress of her bed, unconscious, with no pulse, blood pressure, or respiratory function. During a period of nearly four hours no staff member entered the patient s room or had any personal contact with her to assess her mental condition or alleviate her agitation. A few days after the patient was injured, the director of nursing at the hospital ordered the entire staff who had written in her chart to rewrite and change the hospital records pertaining to the care that the patient received on the morning of her death. The original records were surreptitiously removed from the chart and revised records were substituted without the knowledge of the hospital administration, explicitly violating hospital policy. The substituted records conflicted with other records and the testimony of staff members on duty that morning about their actual observations. The revised records came to light after the lawsuit was filed when a nurse unconnected with the psychiatric unit brought to the attention of the hospital administration that she had been forced to rewrite a note. As stated by the court on appeal, The trial court instructed the jury without objection that they could consider the substitution of the records as a circumstance indicating the defendant s consciousness of negligence. Pisel v. Stamford Hospital, 430 A.2d 1, 6 (Conn. 1980). In the leading New Jersey case, Rosenblitt v. Zimmerman, 766 A.2d 749 (N.J. 2001), the New Jersey Supreme Court began its opinion by stating that [t]his case involves a physician who deliberately destroyed and altered medical records in anticipation of a patient s malpractice lawsuit against him. The physician had delayed responding to a record request, altered some records, and destroyed others. Because the patient had by happenstance obtained a set of unaltered records before filing the lawsuit, the court concluded that an action for spoliation and fraudulent concealment was impermissible because the patient still had access to unaltered records to establish the malpractice claim. However, the court then discussed using evidence of alteration to affect the jury s credibility determinations regarding the defendant. It stated: Absent extraordinary circumstances, evidence of intentional alteration or destruction of medical records by a physician accused of malpractice should not be excluded under N.J.R.E. 403 [as unduly prejudicial]. The mere fact that evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof. The defendant in Rosenblitt had admitted altering the record in an effort by counsel to exclude this evidence by making it immaterial, but the court rejected the tactic. A plaintiff s attorney may not always have such direct proof of spoliation conduct; however, if a plaintiff s attorney presents more than a speculative allegation of alteration, a court probably will not bar him or her from raising the issue and presenting it to a jury. A judge likely will tell the jury that the alteration of medical records is admissible as evidence of a defendant s own belief that the actual records do not support his or her defense, and if it finds that the physician altered the medical records with the intent to deceive or mislead, the jury may infer that the alteration of the records in this case occurred because the defendant believed that the original record would have been unfavorable in the trial of the matter. New Jersey Model Civil Jury Charge 5.50H (July 2002). More recently, a woman sued her internist for failing to diagnose a vascular malformation in her head. Gonzalez v. Agarwal, 2006 N.J. Super. Unpub. Lexis 803, 2006 WL (N.J. Super. Ct. App. Div. 2006), cert. denied, 186 N.J. 604, 897 A.2d 1059 (2006). She had sought treatment from the internist for several months and complained repeatedly and increasingly about headaches. The patient eventually went to an Emergency Room, had a CT scan of the head, and lapsed into a coma, emerging with significant deficit. One of the plaintiff s experts raised questions about whether the defendant had altered his records; however, that expert was not permitted to testify about alteration on the ground that this was outside of his area of expertise. The alteration involved eliminating all reference to headaches in the office chart. At the trial, the defendant testified that he had not altered his records. This testimony was offered both in response to questioning by his defense counsel and during cross- examination by the plaintiff s attorney. The jury returned a verdict in favor of the patient. On appeal, the defendant claimed that the trial court had erred in permitting the plaintiff s counsel to question the defendant concerning the authenticity or alteration of his records in the absence of proof supporting such an allegation. The appeals court rejected this and other arguments made by defendant and affirmed the decision, noting that the accuracy of the defendant s records was a critical issue in the case, and the plaintiff was entitled to explore the issue: There was more than a speculative basis to raise questions about the records. The plaintiff had produced numerous witnesses to corroborate her testimony that she consistently complained of headaches during the time that she sought treatment from the defendant. Moreover, the plaintiff s expert testimony regarding the course of treatment and the information supplied to him about the patient s complaints supported an inference that defendant s treatment records were incomplete and that those omissions likely concerned the plaintiff s headache complaints. Lastly, it noted that the testimony of the plaintiff s husband concerning the defendant s refusal to produce the records despite repeated requests also supported an inference that the records, when eventually produced, had been altered. Deliberate, indeed criminal, falsification of medical records is one thing. Simply put, it is wrong. However, some alterations are intended to record truthful facts or observations that had simply been omitted in initially preparing records. You should counsel your health care professional clients that they must resist making these alterations unless they also observe certain devices intended to distinguish deliberate falsification from truthful clarification, discussed more below. Physicians sometimes try to cover up pure errors in judgment that are not negligent and would not subject them to recovery of damages. But the appearance of a cover-up is devastating in court. Changing a record may require a physician to settle a case even if no negligence has occurred. Once the accu- For The Defense n July 2010 n 59
4 racy of a record is challenged, the integrity of the entire documented medical treatment history becomes suspect. In a close case in which a jury is unable to determine whether a defendant should be held liable for malpractice, the suggestion that the medical record may have been altered to protect the guilty benefits the plaintiff. Significantly, the New Jersey State Board Custom and habit evidence is important and can be quite persuasive. of Medical Examiners regulation permits corrections or additions to an existing record provided that each change is clearly identified as such, dated and initialed by the licensee. The timing, as well as the content of a correction or addition must be evaluated as it could easily be viewed as self- serving. However, legitimate corrections or additions can be made without the stigma of a badge of fraud. Drawing from the law of evidence is important when counseling clients on the potential traps involved in altered medical records, including the broad category of circumstantial evidence and inferences. As noted above, New Jersey State Board of Medical Examiners record- keeping regulation explicitly permits additions/corrections as long as each change is clearly identified as such with the date and initials of the person making the change. To ensure that legitimate changes are clearly identified as such, heath care professionals must specifically do some things and specifically avoid doing other things. In correcting an error or clarifying a prior note, it is important that the change or addition is accurate and true to avoid having the change misinterpreted or viewed as an effort to conceal. In addition to noting the current date and the writer s initials, indicate what prompted the change or addition, such as proofreading of transcribed dictation or a conversation that supplemented a patient s history. Explaining why the entry is out of sequence in a chart is also helpful. When the new 60 n For The Defense n July 2010 entry significantly changes the original information, the original entry should not be removed. Moreover, rather than squeezing a change into an existing entry, the person making the change should cross out the erroneous entry with a single line so that the original record is still legible and add a cross- reference to the location of the correction in the medical chart. Avoid writing over earlier entries. It may be appropriate to prepare a detailed addendum note. However, physicians need to exercise caution with addendum documents. Even if accurate and legitimate, an addendum may appear suspicious and self- serving. This is especially true when it includes more examination details and lengthier entries regarding treatment, discussion, or advice than the original portions of the same medical record. When prepared after several months have passed, an opponent may question whether a physician accurately recalled and recorded the facts in the addendum. If prepared after receiving notice of probable litigation, suspicions about accuracy generally increase even more. Once involved in a lawsuit, however, defense counsel and a physician should prepare a detailed addendum not to be included in the medical record, but for use by the physician with defense counsel. Preparing a lengthy note or memo detailing a recollection can fall within the framework of work product materials prepared in anticipation of litigation. Hannan v. St. Joseph s Hosp. & Medical Center, 722 A.2d 971, 975 (N.J. Super. Ct. App. Div. 1999). Although best initiated at the direction of the attorney defending the case, a physician can record and maintain his or her thoughts apart from a medical chart with a likelihood of protection from discovery. A physician should turn over these notes to defense counsel, bringing them within the scope of attorney- client communications, which are privileged and not discoverable except in very limited extraordinary circumstances. The physician should turn over the original to the attorney, and the physician should not keep a copy for later review. Defense counsel will determine all subsequent review of an addendum document. The attorney should control use of an addendum to maintain the confidentiality of the document. In some cases it might be appropriate to disclose and produce these notes so that they can be used directly. But an attorney can use the document to help prepare the physician as a witness without actually showing it to him or her to avoid the requirement to produce it as having been used by the witness to refresh recollection of past events. The communication between attorney and client is privileged. The adage that if something is not written down, it didn t happen does have some support in a rule of evidence that is an exception to the general rule excluding hearsay. Evidence that something is not included in a record kept in accordance with regular practices of a business or organization is admissible when offered to prove the nonoccurrence of the matter. N.J.R.E. 803(c)(7). See also Fed. R. Evid. 803(7). Plaintiffs want to use this rule because with the proper evidentiary foundation under the rule a defendant s failure to have and produce documents or records could establish that the defendant never actually performed certain examinations, and if the defendant failed to properly examine a patient, the jury could determine that the defendant was negligent and had not exercised the proper duty of care in the circumstances. This evidence rule requires, however, that the unrecorded information must be of a kind of which a written or other record was regularly made and preserved. That is to say, unless it is the regular practice to make and preserve a record of something, the evidence principle does not apply. To prove regular practice, plaintiffs must demonstrate that the records were kept in such a way that the condition would have been noted had it been identified. Accordingly, plaintiffs are required to demonstrate that it was the regular practice of the defendant to keep records of such inspections or examinations. See generally Hoffner v. Ocean County Mall, 2005 N.J. Super. Unpub. Lexis 532, 2005 WL (N.J. Super. Ct. App. Div. 2005), cert. denied, 893 A.2d 722 (N.J. 2006). A plaintiff might provide the foundation for the application of this rule through a defendant physician s testimony. However, the defendant should not readily acknowledge that something is important and that it is custom and habit to write down important things. Altered Records, continued on page 89
5 Altered Records, from page 60 Custom and habit evidence is important and can be quite persuasive. Even though a witness does not have a specific recollection and even though something was not written down, a witness can testify about the likely occurrence of an event on a specific occasion if a person acted in conformity with a habit or routine practice. For example, in defending a claim for lack of informed consent to a hysterectomy, a gynecologist was allowed to testify about his regular habit of discussing the nature of the surgery together with its risks and benefits. Reaves v. Mandell, 507 A.2d 807, 810 (N.J. Super. Ct. Law Div. 1986). Accord, Velazquez v. Portadin, 729 A.2d 1041, 1052 (N.J. Super. Ct. App. Div. 1999), rev d on other grounds, 751 A.2d 102 (N.J. 2000). Although the physician did not recall the specifics of the conversation with this patient, he presented evidence of similar circumstances many times before rather than an isolated occurrence, thus providing a foundation for the admission of this evidence. The jury was instructed that it was to determine what weight and value to give to this testimony. A jury s acceptance of this evidence often depends on the perceived credibility of the witness the physician describing a custom and habit. It is precisely that credibility that is called into question and at risk when an altered records issue arises in a malpractice case. Custom and habit evidence is circumstantial evidence. Circumstantial evidence is indirect evidence. It involves an inferential process that establishes facts through a process of deductive reasoning, sometimes drawing an inference from an inference. Circumstantial evidence falls within two categories: (1) certain that from which the conclusion in question necessarily follows, and (2) uncertain that from which the conclusion does not necessarily follow, but is probable only, and is obtained by a process of reasoning. In civil cases, a jury decides in favor of the party on whose side the evidence preponderates, according to the reasonable probability of truth. Mere guess or conjecture cannot substitute for legal proof, but it is difficult to mark with precision the line that separates a just and reasonable inference from mere conjecture or surmise. Generally, to sufficiently differentiate conjecture from circumstantial evidence, the claimed conclusion from the offered fact must be a probable or a more probable hypothesis, compared with the possibility of other hypotheses. Because aspects of an incompletely documented examination may be deduced from other entries, defense counsel must review the circumstantial evidence and assess its persuasiveness. An extremely simple example illustrates this concept. Nowhere in a chart is it written down that a blood pressure cuff was applied to a patient s arm. However, an entry of 140/75 is in the record. Probably, that conclusion and resulting entry was reached through application of a cuff and a witness could reasonably testify to having done so. Take a more nuanced illustration. A medical record for a lawsuit involving a surgical sponge allegedly left in a patient where the nurses reported a correct sponge count does not have any written entry indicating that the surgeon inspected an area of the abdomen before closure, but nonetheless records the placement of a Jackson- Pratt drain just before closure. This written fact leads to inferences regarding what the surgeon did to place the drain and to the inference that the area of the abdomen must have been manually probed by the surgeon s hand. This analytical process can be hard work. When defending a medical malpractice case, an attorney needs to test the inferences against other evidence and arguments. Although this process cannot provide a complete substitute for a missing medical entry and may not overcome specific, problematic entries in a chart, it offers a way of proving probable facts without the negative effect and consequences of belatedly altering a record to insert a true fact. The quotation at the top of this article is from Sir Walter Scott s long poem, Marmion. It describes a web woven by a spider. It traps flies with its stickiness, and the more they wriggle to escape, the more they become entangled in the web. This famous passage warns that the liar spins and weaves his or her own trap without realizing that this has been done until he or she becomes caught in it. Mixing metaphors, unless physicians avoid this trap and preserve the integrity of medical records and themselves, they may fall down a rabbit hole and fail to find a way out. For The Defense n July 2010 n 89