A common question that clients ask when pursuing a medical malpractice case is, “Will my doctor alter my medical record to hide the evidence?”
Though it seems like doctors and other healthcare providers accused of malpractice might simply change medical records to protect themselves, there are several reasons why doing so is not such a good idea for them.
First, falsifying a medical record is a crime punishable by a fine or even jail time. Additionally, altering medical records can make it harder for doctors to win medical malpractice cases.
Juries do not trust liars, and a questionable change to a record implies that something is being covered up. In other words, the consequences of getting caught altering a medical record are probably worse than the consequences of telling the truth.
Secondly, it is hard to get away with falsifying medical records. Usually, in medical settings, documents are shared among doctors and nurses, not to mention a patient’s health insurance provider and testing facilities.
Discrepancies can be spotted among different copies of a document as well as in a patient’s medical bills. With written records, forensic scientists can tell when a document has been changed by looking at inks and indentations in the paper. It’s also easy to track changes in electronic documents.
Despite the risks, we still see altered medical records. Sometimes, when a healthcare provider is caught, difficult cases suddenly become much easier to win. Conversely, cases with a lot of promise are sometimes lost because there is not an accurate record of what happened, preventing lawyers from being able to support their case with evidence.
Altering a medical record is a crime and can also be used against doctors in medical malpractice cases. However, it is not illegal for medical professionals to make honest updates to records, as long as they properly mark what they are doing and do not obscure information.
To make a correction, doctors should make a new note and include the current date and time. The note should be labeled, “Late Entry,” “Correction,” or “Addendum.”
They should explain the relationship of the note to a previous one, including the reason for the error, and the source of the new information. Records should always reflect who did what. Finally, they should draw a line through the incorrect entry—the text, however, should still be legible.
If an omission in a medical record is noticed after a short amount of time and a physician can distinctly remember administering medication or other treatment, a late entry should be made.
However, if a day or more has passed, it is unlikely that the physician can reliably remember exactly what happened. Filling in missing information after the fact may lead to a misrepresentation of events. As such, filling in omissions may also be an illegal act.
According to Maryland law, a healthcare provider who knowingly or willfully destroys, alters, or otherwise obscures a medical record or other information about a patient to conceal evidence is guilty of a misdemeanor and is subject to a fine of up to $5,000 and/or imprisonment up to one year. They will also lose their medical license.
A medical record is essentially a summary of your health history. Your primary care physician has a medical record for you, but so does every other healthcare facility you have used, from specialists to hospitals.
You can authorize that your medical records be sent to another healthcare provider for continuity of care. Otherwise, your medical records will not be consolidated. There has been an effort in recent years to simplify the sharing of medical records between providers through digitization. Electronic health records (EHRs) contain a summary of your health and treatment history and can be shared more easily.
However, there still is not a standard nationwide software or process for medical professionals to share information. This means that you may have to put in multiple requests if you want a complete copy of your medical record.
Your medical record includes:
- Personal Information (name, SSN, etc.)
- Family Medical History (risk of high blood pressure, anxiety, etc.)
- Medical History (medical conditions, past illnesses/complaints, pregnancies, immunizations, recreational drug use, allergies, etc.)
- Examination Results (physicals, x-rays, lab reports, scans, etc.)
- Medication and Treatment History (drugs used, the possibility of drug interaction, success/failure of past treatments, past surgeries, etc.)
- Medical Directives (patient’s wishes about their medical care if they become unresponsive)
- Autopsy Report/Death Certificate
Although patients have the right to access a copy of their medical records, original documents belong to the healthcare facility that created them.
Doctor’s offices and hospitals are required to keep medical records on the premises in a secure location. They may share your records electronically with your other providers if you grant permission. This is not an automatic or instant process, however, which is why you are often asked questions about your health history when you go to a new facility.
Under the Health Insurance Portability and Accountability Act (HIPPA), patients have a right to receive a copy of their medical and billing records. Facilities do charge a fee for copying and mailing records. However, they cannot legally deny you a copy because you have not paid their fee. It often takes multiple letters and calls to get the facility to send the records.
In a lawsuit, medical records are essential evidence. Insurance providers can review your records and will request a copy if you file a lawsuit. A patient’s personal representative can also collect their medical records, which is especially useful in cases of wrongful death.
The government and law enforcement also have the right to access medical records in certain situations. For more on how to access your medical records and how our lawyers can help, click here.
The following verdicts and settlements are examples of lawsuits that involve examples of falsifying medical records. Your case will not necessarily look like these cases. The settlement value of a case, for example, depends largely on the type of injury you or a loved one suffered. Our lawyers have compiled information on the value of cases by injury type.
- 2020, Kentucky: $5,000,000 Verdict A nursing home admitted an 85-year-old woman. Its staff designated her as a choking risk and ordered a soft diet. Despite the order, they fed her a regular one. Four months into her stay, the woman experienced two choking incidents within 24 hours. The first involved a strawberry, while the second involved a tomato. Three months later, she choked on an unknown food item. The nursing home staff found her unresponsive. After they unsuccessfully performed the Heimlich maneuver, the woman died. Her family alleged that the nursing home staff’s failure to manage her choking risk caused her death. They also alleged that they posthumously altered her medical records by omitting the fatal choking event. The family’s forensic document expert concurred. The nursing home denied all allegations. It argued that her advanced age and co-morbidities caused a natural death. Those arguments failed obviously. Juries do not like doctors that die and that was likely important in this verdict.
- 2019, Pennsylvania: $3,380,000 Verdict A toddler is taken to the pediatrician for vomiting. The pediatrician prescribes nausea medication, and the family goes home. That night, the toddler becomes unresponsive, and her parents take her to the ER. Early the next morning the toddler is pronounced dead. Her bowel had strangulated due to a severe hernia. Afterward, the toddler’s parents allege that the hospital did not take her symptoms seriously. She had been vomiting bile, they claim, an indicator of bowel obstruction and a surgical emergency. Given the vomiting, doctors should have ordered testing that would have revealed the obstructed bowel in time to save their daughter’s life. It is also discovered that “bilious vomiting” was written on the girl’s medical record but was later removed. The hospital claims that the entry was written by mistake and that the girl was already too far gone to save when she came into the hospital. However, due to the illegally altered medical record, the court grants the parent’s motion for an adverse inference charge. In other words, the fact that the hospital felt compelled to alter the medical record indicated that it must have contained unfavorable information. A jury finds in support of the plaintiff for $3.4 million.
- 2018, Texas: $7,635,000 Verdict A 14-year-old girl commits suicide shortly after her pediatrician prescribes an antidepressant to treat her depression. Her parents allege that the pediatrician should not have prescribed the drug since antidepressants increase the risk of suicide in children and teens. Furthermore, they say that the pediatrician did not warn them of this risk. When the mother requests medical records from the pediatrician’s office, she discovers that the defendant pediatrician altered her daughter’s records, resulting in two different sets. The doctor lied to protect himself from a malpractice lawsuit. It is surprising how often doctors get caught in a lie because there they don't make sure all sets of records have been altered. After a long trial, a jury awards the parents more than $7 million.
- 2018, West Virginia: $5,500,000 Verdict A 75-year-old man is taken into intensive care complaining of trouble breathing. Doctors place two tubes. An endotracheal tube helps him breathe and a nasogastric tube, which passes from the nose into the stomach, allows doctors to give him food and medicine. While doctors are placing the nasogastric tube, the endotracheal tube is dislodged. A respiratory therapist is paged, who replaces the tube incorrectly. The man’s oxygen level and heart rate begin to drop. Respiratory staff begin CPR, and another doctor from the ER is called. She notes the incorrect placement of the breathing tube and makes a correction. However, they are unable to resuscitate the man, and he is pronounced dead. A jury awards $5.5 million to the man, who is survived by his wife.
If you believe you have been a victim of medical negligence, click here or call us at 800-553-8082. Our experienced lawyers handle serious medical malpractice cases and may be able to help you win a settlement.Information for Medical Malpractice Victims