Alter records, lose the case

"Updating" your clinical records to bolster your malpractice defense is a sure way to undermine it, say attorneys.

By Dorothy L. Pennachio
Senior Editor

Altering medical records is the kiss of death to a physician's malpractice defense. Insurers and risk managers constantly remind physicians of this, but many physicians still don't heed the advice and lose cases they could have won. Here's a cautionary tale:

A New York jury recently awarded $2.1 million to a 54-year-old man who'd suffered a disabling stroke as the result of worsening hypertension. The plaintiff, Gaetano Bongiovanni, claimed that his longtime internist, Nader Attia, failed to prescribe antihypertensive medication even though Bongiovanni complained repeatedly of severe headaches and feeling as if "my eyes were going to pop out of my head."

A chest X-ray taken a year earlier showed borderline cardiomegaly, suggesting that hypertension was negatively affecting the heart. Bongiovanni's stroke initially caused severe loss of body control, an inability to speak, and significant cognitive defect. There's been improvement, but he can't live alone, can't work, needs a cane to walk, and speaks with difficulty.

Disputed facts in this case centered on the patient's degree of hypertension and on how many times he'd been seen during the five-week period between his first complaint and his stroke. Discovery produced a paper chart showing normal blood pressure readings and two visits.

"That's all we had going into trial," says Mariangela Chiaravalloti, Bongiovanni's attorney. "I thought it was going to be a crap-shoot—a 'he said, she said' situation." But then disturbing facts emerged.

For the plaintiffs, a dream; for the defense, a nightmare

Chiaravalloti contended that her client's medical records had been altered in two ways: to minimize the degree of hypertension and to minimize the number of times he'd seen the doctor.

Bongiovanni said he'd seen his doctor five times, complaining of progressively severe headaches, and that his blood pressure readings were spiraling upward. One week before the stroke, he had told Attia he was having particularly excruciating headaches. Bongiovanni remembered the doctor taking his blood pressure—190/110. At the time of his stroke, it had reached 218/110.

Attia contended that he'd seen the patient only twice and denied that he'd exhibited signs or symptoms of hypertension. According to Attia, the patient presented with conjunctivitis.

At trial, the doctor's team produced a computerized record of office visits. The appointments Bongiovanni claimed he'd had were listed but were marked canceled, and the cancellations were dated. But, according to Chiaravalloti, "there was no question that one cancellation had been made fraudulently. We had a prescription for conjunctivitis medication that was dated the day of one of those missing office visits," she says.

"That was their demise."

During the nine-day trial, Bongiovanni's son and the son's friend, both uniformed US Army medics, testified that they'd called Attia several times to get his permission to transfer Bongiovanni from a hospital in Brooklyn to one in Staten Island. But Attia never returned the calls. So the son and his friend paid a visit to Attia's office and insisted on seeing Bongiovanni's medical record. The son says he remembered notations showing five office visits and a progressive elevation in blood pressure readings.

The defendant said he didn't remember the visit. Defense attorney John P. Lo Presti Jr. says that after the trial, jurists told him they couldn't believe the doctor wouldn't remember a visit by two young men in military uniform.

"It upset the jurors that my client took the position that he didn't remember any of what the two medics testified had happened," says Lo Presti. "It damaged his credibility."

In denying allegations that he'd altered the records, Attia said that while the computerized billing records reflected additional appointments, all but two had been canceled. The plaintiff's attorney then produced evidence that one of the cancellations was entered 30 days after Bongiovanni's stroke.

"It was bizarre," Chiaravalloti says. "That situation is every plaintiffs' lawyer's dream and every defense lawyer's nightmare." Attia still denied altering the records.

The defendant's team could have settled

"We thought this was a defensible case," says Lo Presti. "We could have settled for $500,000 midway through the trial." They didn't because they were convinced the jury wouldn't believe the doctor would tamper with the medical record.

"Attia is a very polite, soft-spoken individual. But he's not forthright, not forceful," says the attorney. After the trial, jury members told Lo Presti that they rejected Attia's testimony and believed Bongiovanni's son because the young man seemed sure of his recollection and relayed it vividly.

Lo Presti says, "It's not persuasive to take an 'I don't recall' attitude. If in doubt, it's better to testify, 'He must be mistaken in what he saw.' Fight fire with fire," he adds. "Be forceful in establishing your ground."

A post-trial motion to set aside the verdict was granted, and the final settlement was $1.475 million to the plaintiff.

The lesson:Altering records is a sure way to sabotage your defense. In fact, plaintiffs' attorneys always hope doctors have altered their records, because, if they can prove it, the suit is over, says Stephen H. Mackauf, a plaintiffs' attorney in New York City.

"It makes a doctor look like a liar and a cheat," he says. "The jury won't trust anything you say from that point forward. It's almost impossible to win a suit after that."

"Altering records? Somewhere along the way, it will get you," says Chiaravalloti.

The right way to update your records

There are situations when adding or deleting information to a chart is legitimate. However, no matter how innocent your intention, any change, if not done properly, can be seen as a self-serving attempt to cover a misdeed.

Say, a week after a visit, you're reviewing your records and remember a detail you left out. Never backdate an entry. Date your annotation truthfully, and specify that you're adding it after the fact. If possible, say why the information was omitted.

Make the addition legible and obvious. "Don't squeeze the new information in or scribble it in the margin," says Stephen H. Mackauf, a plaintiffs' attorney in New York City.

One inviolate rule: Never alter records in any way after they've been subpoenaed.

The penalty for altering records

Improperly changing clinical documents can invite a world of trouble, in addition to jeopardizing a malpractice defense.

• Your liability insurer could cancel your coverage. Many policies specifically exclude coverage when a physician alters records.

• You could face criminal charges for fraud and perjury.

• You could lose your license. Authorities may consider an alteration professional misconduct.

Forensic techniques

When doctors falsify records, they tend to do a slapdash job. But their court-appointed challengers, sometimes former FBI handwriting analysts, are masters of the art. "Alterations of records are easily detected," says Lee J. Johnson, a health care attorney in Mount Kisco, NY. "Experts can point out variations in handwriting, chemical content of inks, types of pens, or types of forms."

According to James A. Blanco, a forensic document examiner in Sacramento, CA, and author of Business Fraud: Know It & Prevent It (Humanomics, 2001), the example below shows how obvious detection can be. To the naked eye, the first blood pressure reading appears to be "120/80." However, infrared luminescence provided proof that a different writing instrument was used to change the entry, which was originally "170/90." The black ink of the altering pen glows white, showing where the original entry was changed.

In addition to infrared examination of inks, examiners use the following techniques when medical record alteration is suspected:

• infrared examination of suspected obliterated entries

• handwriting examination to determine if the sequence of the documents was altered

• examination of documents to determine if any pages were inserted or removed

• examinations of folds, creases, and staple or punch holes to determine the handling and history of the document

• handwriting analysis to determine who wrote the entries

Dorothy Pennachio. Alter records, lose the case.

Medical Economics

Jun. 6, 2003;80:40.