For The Defense, July 2010 - DRI Today

More documents

Recommendations

Info

M E D I C A L L I A B I L I T Y A N D H E A LT H C A R E L A Wbefore a lawsuit is even contemplated, andthese copies can surface after a lawsuithas been filed and the altered documentshave been produced in discovery. Documentexaminers can inspect paper andink, using sophisticated electronic equipmentto determine the age of the ink andthe paper and sometimes finding that thematerials were not even available when aRecord tamperingcomplicates a successfuldefense of a malpracticecase and raises questionsabout the quality of carethat a physician rendered.chart entry was supposedly made. Forensicexperts readily detect changes made tomedical records kept on computer disks.In New Jersey and elsewhere alteringa medical record can constitute a criminalact and violate several, different laws.The criminal statutes generally focus onfraudulent and purposeful conduct. Forinstance, in New Jersey a person commitsthe offense of tampering with evidencewhen he or she alters, destroys, conceals,or removes any record or document “withpurpose to impair its verity or availability,”believing that an official proceeding—whichincludes a judicial proceedingsuch as a lawsuit—is pending or is aboutto be started. N.J.S.A. 2C:28-6. One statutespecifically addressing medical recordsstates that the alteration must be done “inorder to deceive or mislead any person asto information, including, but not limitedto, a diagnosis, test, medication, treatmentor medical or psychological history,concerning the patient.” N.J.S.A. 2C:21-4.1. See also State v. Amabile, 2006 N.J.Super. Unpub. Lexis 116, 2006 WL 853199(N.J. Super. Ct. App. Div. 2006) (optometristfalsified patient records to defraudinsurance companies). Health care claimsfraud sometimes involves medical recordsalteration. N.J.S.A. 2C:21-4.3. When false58 n For The Defense n July 2010records are used in connection with reimbursementclaims, the provisions of theInsurance Fraud Prevention Act may beinvoked. N.J.S.A. 17:33-1. This provides fortreble damages and civil monetary penalties,as well as the assessment of attorneys’fees and costs. In addition, the FederalFalse Claims Act, 31 U.S.C. §3729(a)(1)(B)and (G), and the recently enacted New JerseyFalse Claims Act, N.J.S.A. 2A:32C-3(b),may be triggered when false records andgovernmental sources of reimbursementare involved. These also provide for theenhanced recovery of treble damages andcivil monetary penalties for each violation.Criminal conviction, especially a convictioninvolving the practice of medicine,places a physician’s licensure at risk.N.J.S.A. 45:1-21(f). But even without criminalentanglement, this type of conductalone can result in disciplinary proceedingsand licensure action by a state’s boardof medical examiners. In 1976, a surgeonin New Jersey was charged with murderingpatients with curare. The deaths hadoccurred nearly a decade before. Althoughthe surgeon was acquitted of the criminalcharges, his New Jersey license was revoked.The board of medical examiners found thathe had made false entries in operative reportsfor the purpose of self- protection.At the time, the board had no regulationsspecifically dealing with record keeping. Itconcluded that the surgeon’s false entriesdemonstrated a lack of the good moralcharacter required for continued licensure.The revocation was upheld on appeal to thecourt. In re Jascalaveich, 442 A.2d 635 (N.J.Super. Ct. App. Div. 1982). In its opinion theappellate court emphasized that the physiciantampered with the integrity of a patient’smedical records:We are persuaded that a physician’s dutyto a patient cannot but encompass his affirmativeobligation to maintain the integrity,accuracy, truth and reliability ofthe patient’s medical record. His obligationin this regard is no less compellingthan his duties respecting diagnosis andtreatment of the patient since the medicalcommunity must, of necessity, beable to rely on those records in the continuingand future care of that patient.Obviously, the rendering of that care isprejudiced by anything in those recordswhich is false, misleading or inaccurate.We hold, therefore, that deliberate falsificationby a physician of his patient’s medicalrecord, particularly when the reasontherefor is to protect his own interests atthe expense of his patient’s, must be regardedas gross malpractice endangeringthe health or life of his patient.Id. at 645.The New Jersey State Board of MedicalExaminers now has a regulation explicitlyrequiring practitioners to maintain “accurate”and “contemporaneous” records.N.J.A.C. 13:35-6.5. This regulatory requirementhas periodically been a source of disciplinaryaction. See, e.g., In re Perera, 2009N.J. Super. Unpub. Lexis 930, 2009 WL874471 (N.J. Super. Ct. App. Div. 2009). Seealso In re Zahl, 895 A.2d 437 (N.J. 2006).In addition to impacting a medical malpracticecase, altered records can becomethe basis for a claim for the tort of spoliationfor fraudulent concealment if thealterations deprived a patient of proof for aclaim for improper treatment. Rosenblitt v.Zimmerman, 766 A.2d 749 (2001). The spoliationclaim may expose a medical practitionerto punitive damages.Finding and exposing an alteration inmedical records is a significant and dramaticevent in litigation, especially in connectionwith medical malpractice claims.Unsurprisingly, this so-called “badgeof fraud” can drastically affect witnesscredibility.Record tampering complicates a successfuldefense of a malpractice case andraises questions about the quality of carethat a physician rendered. Indeed, it mayplace a physician’s presumed defense withan insurance- assigned attorney in jeopardy.Some professional liability insurancepolicies contain provisions that would voidcoverage if there had been records alterations.Compare Eastern Dentists Ins. Co. v.Lindsay, 2004 Mass. Super. Lexis 345, 2004WL 2004778 (Mass. Super. Ct. 2004) withEastern Dentists Ins. Co. v. Jones, 74 Pa.D&C 4th 244, 2005 Phila. Ct. Com. Pl. Lexis305 (Pa. C.P. 2005). Given that malpracticecoverage is mandatory, it is unclear,if an insurer of New Jersey physicians canrescind coverage once a physician submitsan insurance claim. In any event, aninsurer will not very likely renew coveragewhen it must pay to settle a case because aphysician altered a record.
Deliberate falsification unfortunatelydoes occur. One particularly egregious exampleinvolved the death of a young psychiatricpatient who was placed in a seclusionroom in a highly agitated and psychoticstate. A few hours later she was found in thein the room with her head wedged betweenthe side rail and the mattress of her bed,unconscious, with no pulse, blood pressure,or respiratory function. During a periodof nearly four hours no staff memberentered the patient’s room or had any personalcontact with her to assess her mentalcondition or alleviate her agitation. A fewdays after the patient was injured, the directorof nursing at the hospital ordered theentire staff who had written in her chart torewrite and change the hospital records pertainingto the care that the patient receivedon the morning of her death. The originalrecords were surreptitiously removed fromthe chart and “revised” records were substitutedwithout the knowledge of the hospitaladministration, explicitly violating hospitalpolicy. The substituted records conflictedwith other records and the testimony of staffmembers on duty that morning about theiractual observations. The revised recordscame to light after the lawsuit was filedwhen a nurse unconnected with the psychiatricunit brought to the attention of thehospital administration that she had beenforced to rewrite a note. As stated by thecourt on appeal, “The trial court instructedthe jury without objection that they couldconsider the substitution of the records asa circumstance indicating the defendant’sconsciousness of negligence.” Pisel v. StamfordHospital, 430 A.2d 1, 6 (Conn. 1980).In the leading New Jersey case, Rosenblittv. Zimmerman, 766 A.2d 749 (N.J. 2001),the New Jersey Supreme Court began itsopinion by stating that “[t]his case involvesa physician who deliberately destroyed andaltered medical records in anticipation of apatient’s malpractice lawsuit against him.”The physician had delayed responding to arecord request, altered some records, anddestroyed others. Because the patient had“by happenstance” obtained a set of unalteredrecords before filing the lawsuit, thecourt concluded that an action for spoliationand fraudulent concealment wasimpermissible because the patient still hadaccess to unaltered records to establish themalpractice claim. However, the court thendiscussed using evidence of alteration toaffect the jury’s credibility determinationsregarding the defendant. It stated:Absent extraordinary circumstances,evidence of intentional alteration ordestruction of medical records by a physicianaccused of malpractice shouldnot be excluded under N.J.R.E. 403 [asunduly prejudicial]. The mere fact that“evidence is shrouded with unsavoryimplications is no reason for exclusionwhen it is a significant part of the proof.”The defendant in Rosenblitt had admittedaltering the record in an effort by counselto exclude this evidence by making it“immaterial,” but the court rejected thetactic. A plaintiff’s attorney may not alwayshave such direct proof of spoliation conduct;however, if a plaintiff’s attorney presentsmore than a speculative allegation ofalteration, a court probably will not bar himor her from raising the issue and presentingit to a jury. A judge likely will tell the jurythat the alteration of medical records isadmissible as evidence of a defendant’s ownbelief that the actual records do not supporthis or her defense, and if it finds thatthe physician altered the medical recordswith the intent to deceive or mislead, thejury may infer that the alteration of therecords in this case occurred because thedefendant believed that the original recordwould have been unfavorable in the trialof the matter. New Jersey Model Civil JuryCharge 5.50H (July 2002).More recently, a woman sued her internistfor failing to diagnose a vascularmalformation in her head. Gonzalez v.Agarwal, 2006 N.J. Super. Unpub. Lexis803, 2006 WL 158641 (N.J. Super. Ct. App.Div. 2006), cert. denied, 186 N.J. 604, 897A.2d 1059 (2006). She had sought treatmentfrom the internist for several monthsand complained repeatedly and increasinglyabout headaches. The patient eventuallywent to an Emergency Room, hada CT scan of the head, and lapsed into acoma, emerging with significant deficit.One of the plaintiff’s experts raised questionsabout whether the defendant hadaltered his records; however, that expertwas not permitted to testify about alterationon the ground that this was outsideof his area of expertise. The alterationinvolved eliminating all reference to headachesin the office chart.At the trial, the defendant testified thathe had not altered his records. This testimonywas offered both in response to questioningby his defense counsel and duringcross- examination by the plaintiff’s attorney.The jury returned a verdict in favorof the patient. On appeal, the defendantclaimed that the trial court had erred inpermitting the plaintiff’s counsel to questionthe defendant concerning the authenticityor alteration of his records in theabsence of proof supporting such an allegation.The appeals court rejected this andother arguments made by defendant and affirmedthe decision, noting that the accuracyof the defendant’s records was a criticalissue in the case, and the plaintiff was entitledto explore the issue: “There was morethan a speculative basis to raise questionsabout the records.” The plaintiff had producednumerous witnesses to corroborateher testimony that she consistently complainedof headaches during the time thatshe sought treatment from the defendant.Moreover, the plaintiff’s expert testimonyregarding the course of treatment and theinformation supplied to him about the patient’scomplaints supported an inferencethat defendant’s treatment records wereincomplete and that those omissions likelyconcerned the plaintiff’s headache complaints.Lastly, it noted that the testimonyof the plaintiff’s husband concerning thedefendant’s refusal to produce the recordsdespite repeated requests also supported aninference that the records, when eventuallyproduced, had been altered.Deliberate, indeed criminal, falsificationof medical records is one thing. Simply put,it is wrong. However, some alterations areintended to record truthful facts or observationsthat had simply been omitted ininitially preparing records. You shouldcounsel your health care professional clientsthat they must resist making thesealterations unless they also observe certaindevices intended to distinguish deliberatefalsification from truthful clarification,discussed more below. Physicians sometimestry to cover up pure errors in judgmentthat are not negligent and wouldnot subject them to recovery of damages.But the appearance of a cover-up is devastatingin court. Changing a record mayrequire a physician to settle a case even ifno negligence has occurred. Once the accu-For The Defense n July 2010 n 59
Page 2 and 3:
DRI—The Voiceof the Defense BarVo
Page 5 and 6:
IT’S EASIER TOEND YOUR DAYWHEN YO
Page 7 and 8:
CalendarUpcoming eventsof interest
Page 9 and 10: D R I N E W SDRI joins Thompson &Kn
Page 11 and 12: YEARS50 CELEBRATINGLEADERSHIP ■ E
Page 13 and 14: “Change” was the rallying cry h
Page 15 and 16: complained of injury by a preponder
Page 17 and 18: should have an opportunity to consi
Page 19 and 20: M E D I C A L L I A B I L I T Y A N
Page 21 and 22: A notable recent case analyzing a c
Page 23 and 24: getary or financial control, dual o
Page 27 and 28: consideration when I corrected plai
Page 29 and 30: notes and take advantage of that mu
Page 33 and 34: any known instances of a health car
Page 35 and 36: ical malpractice reporting, and the
Page 37 and 38: Taken together, the Doe and Steinbe
Page 39 and 40: apparently led to his death. Propof
Page 43 and 44: in the hospital’s electronic heal
Page 64 and 65: P R O F E S S I O N A L L I A B I L
Page 86 and 87: W R I T E R S ’ C O R N E RSimpli
Page 88 and 89: D E F E N S E E T H I C S A N D P R
Page 90 and 91: Negligence, from page 38the equival
Page 92 and 93: Writers’ Corner, from page 84Cir.
Page 94 and 95: A D V O C AT E S A N D N E W M E M
show all

For The Defense, July 2010 - DRI Today

Create successful ePaper yourself

Delete template?

Save as template?