For The Defense, July 2010 - DRI Today

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 Wracy of a record is challenged, the integrityof the entire documented medical treatmenthistory becomes suspect. In a closecase in which a jury is unable to determinewhether a defendant should be heldliable for malpractice, the suggestion thatthe medical record may have been alteredto protect the guilty benefits the plaintiff.Significantly, the New Jersey State BoardCustom and habitevidence is important andcan be quite persuasive.of Medical Examiners’ regulation permitscorrections or additions to an existingrecord “provided that each change is clearlyidentified as such, dated and initialed bythe licensee.” The timing, as well as thecontent of a correction or addition mustbe evaluated as it could easily be viewed asself- serving. However, legitimate correctionsor additions can be made without thestigma of a “badge of fraud.”Drawing from the law of evidence isimportant when counseling clients on thepotential traps involved in altered medicalrecords, including the broad categoryof circumstantial evidence and inferences.As noted above, New Jersey State Boardof Medical Examiners’ record- keeping regulationexplicitly permits “additions/corrections”as long as each change is “clearlyidentified as such” with the date and initialsof the person making the change. Toensure that legitimate changes are “clearlyidentified as such,” heath care professionalsmust specifically do some things and specificallyavoid doing other things.In correcting an error or clarifying aprior note, it is important that the changeor addition is accurate and true to avoidhaving the change misinterpreted orviewed as an effort to conceal. In additionto noting the current date and the writer’sinitials, indicate what prompted thechange or addition, such as proofreadingof transcribed dictation or a conversationthat supplemented a patient’s history. Explainingwhy the entry is out of sequencein a chart is also helpful. When the new60 n For The Defense n July 2010entry significantly changes the originalinformation, the original entry should notbe removed. Moreover, rather than squeezinga change into an existing entry, the personmaking the change should cross out theerroneous entry with a single line so thatthe original record is still legible and adda cross- reference to the location of the correctionin the medical chart. Avoid writingover earlier entries.It may be appropriate to prepare a detailedaddendum note. However, physiciansneed to exercise caution with addendumdocuments. Even if accurate and legitimate,an addendum may appear suspicious andself- serving. This is especially true whenit includes more examination details andlengthier entries regarding treatment, discussion,or advice than the original portionsof the same medical record. Whenprepared after several months have passed,an opponent may question whether a physicianaccurately recalled and recorded thefacts in the addendum. If prepared afterreceiving notice of probable litigation, suspicionsabout accuracy generally increaseeven more.Once involved in a lawsuit, however,defense counsel and a physician shouldprepare a detailed addendum—not to beincluded in the medical record, but for useby the physician with defense counsel. Preparinga lengthy note or memo detailing arecollection can fall within the frameworkof “work product”—materials prepared inanticipation of litigation. Hannan v. St. Joseph’sHosp. & Medical Center, 722 A.2d971, 975 (N.J. Super. Ct. App. Div. 1999).Although best initiated at the direction ofthe attorney defending the case, a physiciancan record and maintain his or her thoughtsapart from a medical chart with a likelihoodof protection from discovery. A physicianshould turn over these notes to defensecounsel, bringing them within the scope ofattorney- client communications, which areprivileged and not discoverable except invery limited extraordinary circumstances.The physician should turn over the originalto the attorney, and the physician should notkeep a copy for later review. Defense counselwill determine all subsequent review ofan addendum document.The attorney should control use of anaddendum to maintain the confidentialityof the document. In some cases it might beappropriate to disclose and produce thesenotes so that they can be used directly. Butan attorney can use the document to helpprepare the physician as a witness withoutactually showing it to him or her to avoidthe requirement to produce it as havingbeen used by the witness to refresh recollectionof past events. The communicationbetween attorney and client is privileged.The adage that if something “is notwritten down, it didn’t happen” does havesome support in a rule of evidence that isan exception to the general rule excludinghearsay. Evidence that something isnot included in a record kept in accordancewith regular practices of a businessor organization is admissible whenoffered to prove the nonoccurrence of thematter. N.J.R.E. 803(c)(7). See also Fed. R.Evid. 803(7). Plaintiffs want to use this rulebecause with the proper evidentiary foundationunder the rule a defendant’s failureto have and produce documents or recordscould establish that the defendant neveractually performed certain examinations,and if the defendant failed to properlyexamine a patient, the jury could determinethat the defendant was negligent andhad not exercised the proper duty of care inthe circumstances.This evidence rule requires, however,that the unrecorded information must beof a kind of which a written or other recordwas regularly made and preserved. That isto say, unless it is the regular practice tomake and preserve a record of something,the evidence principle does not apply. Toprove regular practice, plaintiffs mustdemonstrate that the records were kept insuch a way that the condition would havebeen noted had it been identified. Accordingly,plaintiffs are required to demonstratethat it was the regular practice of thedefendant to keep records of such inspectionsor examinations. See generally Hoffnerv. Ocean County Mall, 2005 N.J. Super.Unpub. Lexis 532, 2005 WL 3071524 (N.J.Super. Ct. App. Div. 2005), cert. denied, 893A.2d 722 (N.J. 2006). A plaintiff might providethe foundation for the application ofthis rule through a defendant physician’stestimony. However, the defendant shouldnot readily acknowledge that something isimportant and that it is custom and habitto write down important things.Altered Records, continued on page 89