Alter the records? Bad idea

May 18, 2007

Malpractice Consult

Key Points

Physicians have long been warned that improperly altering a medical record can have serious consequences. Many states have even made fraudulent alteration or destruction of medical records a criminal offense, as well as a basis for license revocation.

Unfortunately, some physicians faced with lawsuits or inquiries concerning their care succumb to the temptation to rewrite chart entries. While these modifications might be nothing more than an honest effort to ensure that the record accurately reflects what occurred, it's rarely viewed as such by trial lawyers, juries, or regulators.

Because a revised chart can make a malpractice case far more difficult to defend, insurance carriers have started to include language in their policies indicating that alteration of a medical record will negate the insurer's responsibility to defend the physician or pay a claim.

Six months later-shortly before the trial was set to begin-the insurance company sought to withdraw from the case and to disclaim liability. Due to the half-year delay by the insurer and the imminence of the trial, the court refused to allow the insurer to pull out. However, the issue of whether the insurance company would ultimately be responsible for any judgment remained unresolved.

The carrier then sought to settle the case, but it demanded that the physician pay half of any settlement-or risk being responsible for the entire judgment, should he lose the trial. After a great deal of wrangling, and the physician's retention of personal counsel, an agreement was reached whereby the physician paid approximately 20 percent of a nearly $1 million settlement. Had the insurance company not waited several months before seeking to withdraw from the case, the physician may well have had to pay the entire $1 million.

Plaintiffs' lawyers have several ways of verifying that records have been revised. The principal method is simply by obtaining a copy of the record early on, then comparing relevant pages to what's in the record after a lawsuit has been filed. More-sophisticated techniques include handwriting analysis and ink analysis; the latter method can determine not only whether different pens have been used to write different portions of a note, but also how long the ink has been on the paper.

Altering a medical record, no matter how honest the intent, is unethical. Given the enormous risks associated with compromising the integrity of medical records and the likelihood of getting caught doing so, it's also foolhardy. If you need to add information to a medical record, clearly indicate the date on which the addition was made, and initial the entry. Similarly, if a note needs to be modified, draw a line through the original entry so that it can still be read, write the word "error" above or next to the stricken entry, and add the date and your initials.

The author is a health law attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, NJ, and Lake Success, NY. He can be reached by e-mail at kern@drlaw.com
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This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Suite 300, Woodcliff Lake, NJ 07677-7664. You may also fax your question to us at 201-690-5420 or e-mail it to memalp@advanstar.com
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