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After a bad clinical outcome, physicians must resist what can be a strong impulse to change or add to the patient’s medical record.  Even if the modification is meant to record an order that was truly given  but not yet recorded in the chart, or to clarify thoughts that are already in writing. 

 

The biggest problem is the perception by courts and juries that edits to the medical record are self-serving, especially if the doctor changes the record after learning that the outcome was not good.  If the change indicates that the note writer was not responsible for the unfortunate outcome, then a jury will probably assume that the note is designed simply to avoid blame. They may not attach much credibility to the content of the note itself. 

 

I’ve seen cases where the health care professional will go back and simply add information to a previously existing note.  This leads to real problems  during a deposition or at trial, as it will appear that the information is being added simply to justify in retrospect the decisions that led to the bad outcome.  Almost without exception, the provider becomes tangled up in a long, unfortunate explanation that does not seem credible.  It would be better merely to place a new note in the record.

 

 

A related problem is discarding or destroying medical records. This does not have to be intentional to be harmful to the provider defendant. Most states and licensing boards have fairly strict regulations regarding the period of time for which a patient’s records must be maintained.  The responsibility for maintaining patient records will rest with a physician’s office for outpatient visits or a hospital medical records department for inpatient stays.   If important records are missing, this usually will work against the health care worker.

 

In one Boston case recently, a superior court judge decided that the health care facility would be held liable prior to trial because they had lost fetal monitoring records.  The Plaintiff asserted that these record were crucial to his proof of the case.

 

 

A big problem with the alteration or destruction of a medical record, however, is money.  Juries are instructed that they should only compensate the plaintiff for pain and suffering and economic damages.  They are not to send a message to the medical world, nor are they often instructed that awarding punitive damages is appropriate.   However, an issue such as this, can cause a jury to take matters into its own hands.  Juries take the jury process very, very seriously.  They strongly resent being lied to. If they believe in their hearts that the records were lost or altered by the defendant and he lied in his testimony to them, they will make their feelings known in the amount of damages they award upon finding underlying negligence.  Not only that,  but they will be much more willing to find negligence in relation to the treatment rendered if they are upset with the defendant’s subsequent conduct.  They will simply conclude, despite all the expert evidence, that if he did not do something  wrong, why would he have been so deceitful.   If a jury starts down this path and adopts this reasoning, you better put your flack jacket on, because you are about to get hit.

 

Medical records are meant to pass information from one health care professional to another. If an edit is absolutely necessary to further the patient’s care, protocols are available through legal counsel or risk management professionals. The best rule is this.  Leave things as they are when you find out about a patient’s bad outcome. Do not go back and make additions or deletions as if they were made at the time of treatment. In the end, juries, lawyers and other fact finders, will take their role very seriously and hopefully, arrive at the truth.

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Bad Clinical Outcome

by Attorney Frank E. Reardon

April 2004