For The Defense, July 2010 - DRI Today

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