Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

Don't "polish" your records

Q: I repeatedly told a patient that a lesion should be biopsied to rule out cancer, but my charting is admittedly sketchy, and I didn't adequately document the encounters. Now, the patient, who didn't return for follow-up visits, has cancer and is suing me for failure to make a timely diagnosis. Can I correct the chart to show that I'd warned this patient?

A: No. Altering records is the easiest way to lose a malpractice suit and invite a world of other trouble. No matter how pure your intentions, any "refinement" will be seen as a self-serving attempt to strengthen your defense or cover up a misdeed.

Alterations are easily detected—for instance, from differences in versions of the record found in other locations such as a hospital or clinic, or in the possession of a referral source or the patient. Any difference in the documents will be discovered quickly.

Experts can point out variations in handwriting, ink, type of pen used, date, or type of forms employed. A plaintiff's attorney will eagerly display magnified posters of the disputed records to a jury, and ask the physician for some plausible explanation of the irregularity. You'd have a hard time providing a rationale that won't sound duplicitous. Nothing turns a jury against a physician faster than allegations of a coverup.

Your liability insurer could also cancel your coverage, effectively leaving you bare. Many policies specifically exclude coverage when a physician alters his records. Your company may provide a defense, but it will wait to see how the trial develops before deciding whether to indemnify you.

You could also face criminal charges. A medical record is often considered a business record. Tampering with a business record is a misdemeanor in some states.

Another serious threat is the possibility of losing your medical license. Authorities may consider an alteration professional misconduct, possibly worthy of licensure sanctions.

This doesn't necessarily mean it's wrong to add notations at a later date. Reviewing your records to check for accuracy and completeness is common and commendable—as long as it's done correctly: When you discover an omission or error, add a new note at the spot where you'd write your next entry in the chart. Record the date, note that you're correcting or adding to information to an earlier note (provide that date, too), then write in the correct information. If possible, explain why the information was omitted. If you have room where the earlier entry appears, write a note there referring the reader to the later addition. Never "backdate" a report, note, or any other record entry.

Different rules may apply if you want to correct a hospital record; some states require that the hospital record be officially closed within a certain number of days after discharge. But assuming hospital policy and state law permit writing a note at a later date, you may add to the record in the same fashion as you would your own.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2002;12:74.