No one likes to get sued! However, statistics show that a significant number of medical providers will experience this unpleasant situation at least once in their career.
When notified about a claim being filed or inquiry made, most physicians immediately begin reviewing the patient’s records. Although most physicians will try to maintain a pragmatic approach, it is only natural that the human conditions of fear and doubt will often surface.
That is when the temptation, albeit well meaning, to alter the records may come to mind. Despite the fact that such alterations may only be an honest attempt to clarify the records or more accurately depict the situation, the end result is usually disastrous.
Based on such realities, it is timely to review the reason why alteration of records can cause you to lose your case – even a winnable situation.
Aside from the fact that many states consider such alterations to be a criminal defense, some professional liability insurance policies become null and void if the insured alters records or commits any other act that interferes with the defense of a claim. In other words, changing the chart could cost you the case – and you would not have an insurance partner to pick up the costs of defense, settlements and awards.
Occasionally a physician might conclude that changes can be made without anyone ever knowing it. Do not fall into that misconception. Forensic science has made tremendous advances in recent years and experts can identify variances in ink, spacing, handwriting, typing, and even pressure indentations. Discovery is not always based on technology; the doctor could have sent a copy of the records to another doctor during treatment – a copy that does not include later changes.
Once a jury or a judge believe that records have been altered, the doctor’s credibility has sustained major damage. A small award could turn into a much larger award for damages, or a winnable case could be lost.
Many readers may be thinking that they would never alter records; yet, faced with a lawsuit, the temptation can become reality. That is why experts are so adamant that the physician should maintain complete and accurate records throughout the course of a patient’s treatment. It is also a good idea to avoid leaving blank areas on the charts. Those blank areas could fuel the temptation to add a little bit more information after the fact.
If you are making changes or adding to a chart, always date your entry with the actual date – even if it is being added a after the patient visit. Place the entry in the next available space on the chart; never try to squeeze it into an earlier entry area. Explain the reasons for the late entry and tie it back to the original entry that it augments. Some experts also recommend labeling it as a “late entry”.
Aside from larger awards and lost cases, altered records can also negate the ability of defense attorneys to settle a case prior to trial. Assuming that the case it not winnable for any number of reasons, it is preferable to settle for a reasonable sum of money than to risk the unknown amount of a jury award. However, if the plaintiff’s attorneys can prove that the records were altered, they may refuse to enter into a settlement. Their reasoning is that a jury would be sympathetic to the plaintiff, as opposed to a doctor who tampered with the records (evidence).
The penalties for altering records extend well beyond the negative impact on a malpractice case and subsequent damages. There is the probability of facing criminal charges for perjury or fraud, and the potential loss of your license to practice medicine.
In a “fair” world, the outcome of malpractice cases should be determined on quality of care and the medical judgments of the doctor. If you are an honest, credible and experienced doctor, your attorneys can defend lapses in judgment, medical errors and mistakes. If you lose that credibility by altering your records, all is lost.
There is absolutely no ethical justification for making any alteration to a medical record when faced with a malpractice claim or inquiry. Doing so will not win the case, it will only hurt you.