What can you do if you think that a doctor or nurse altered your medical record?
Painter Law Firm’s experienced medical malpractice lawyers can get to the bottom of medical records that are incomplete or have been altered or changed
As a Texas medical malpractice lawyer, I frequently represent clients who suspect that hospitals, doctors, and nurses have changed, altered, or doctored the medical records.
Sometimes these patients and family members believe that the medical records are incomplete, contain false information, or have been manipulated or altered after-the-fact to cover-up a negligence, a mistake, or bad care.
One of the benefits of hiring an attorney who focus on medical malpractice cases is getting the experience in analyzing medical records.
Any time that we handle a case for someone who has been injured by medical negligence, one of the first things we do is carefully study the medical records to make sure that they are complete and accurate. We know what to look for and know when parts of a medical record are missing or look suspicious.
What is a complete medical record?
If you ask a doctor or nurse after they have been sued, they will most likely say that anything flies, but that is not true.
Any time that we file a medical malpractice lawsuit, one stage of the case involves taking the depositions (sworn out-of-court testimony transcribed by a court reporter) of the doctors and nurses involved in the health care. Almost invariably, the defendant doctors and nurses will testify that the medical records are not intended to contain all the relevant information about the care provided.
The doctors and health care providers always start squirming, though, when I confront them with Texas Medical Board Rule 165.1, which requires the medical records to be “complete, contemporaneous, and legible.”
Complete means that medical records had to contain details about the care provided and treatment decisions. Oftentimes in litigation, the medical records lack basic key information
Contemporaneous means that the documentation needs to be done while the care is being provided, or very close to that time. I recently took the deposition of a defendant OB/GYN doctor who did not sign some medical record entries until a year and one-half after her care of the patient had ended, and after the lawsuit was filed. That certainly is not contemporaneous!
Legible means that it has to be readable.
What has to be in the medical record for each doctor visit?
The Texas Medical Board medical records rule goes beyond general requirements and describes in great detail what doctors are expected to document for each and every patient visit or encounter:
- the reason for the encounter and relevant history, physical examination findings and prior diagnostic test results;
- an assessment, clinical impression, or diagnosis;
- a plan for care (including discharge plan if appropriate);
- and the date and legible identity of the treater.
In other words, every time you see your doctor, the medical record should contain a detailed enough note to describe all of this information. A complete medical record note is part of the continuum of care and prevents things from falling through the cracks, which could be unnecessarily dangerous to the patient.
What else has to be in the medical record?
In addition to writing what happens each time they see a patient, Texas Medical Board Rule 165.1 requires doctors to ensure that the medical record contains:
- past and present diagnoses, which should be accessible to the treating and/or consulting physician;
- the rationale for and results of diagnostic and other ancillary services;
- the patient's progress, including response to treatment, change in diagnosis, and documentation of the patient's non-compliance, if any;
- identification of relevant risk factors;
- a written plan of care, which should, include, when appropriate, documentation of treatments and medications (prescriptions and samples) specifying amount, frequency, number of refills, and dosage; any referrals and consultations; patient/family education; and specific instructions for follow up;
- any written consents for treatment or surgery requested from the patient/family by the physician;
- a summary or documentation memorializing communications transmitted or received by the physician about which a medical decision is made regarding the patient; and
- billing codes, including CPT and ICD-9-CM codes, reported on health insurance claim forms or billing statements should be supported by the documentation in the medical record.
It is abundantly clear that the Texas Medical Board recognizes that medical recordkeeping is a serious and important duty of doctors. That is why, when we represent our medical malpractice plaintiff clients, we never allow doctors to use a cop out or excuse when their medical records are lacking.
When a defendant doctor says, “I could not document everything because I was too busy caring for my patients,” we reply with, “What does the Texas Medical Board think about that?” The rules are there for a reason, and the reason is patient safety.
The perils of electronic medical records
Almost everyone has heard the jokes about the poor handwriting of doctors. Before electronic medical records became widely used, reading illegible handwriting was certainly difficult.
Electronic medical records present different challenges, though.
One big one is what I call “copy and paste” creep. This happens both in office charts and hospital medical records.
It works like this. The first doctor or nurse who sees a patient will enter a lot of information into the electronic medical record system, including a patient history, what brought the patient in for an evaluation, and details about the assessment.
If there is anything inaccurate in that initial electronic documentation, it will likely be copied and pasted by subsequent doctors and nurses on each encounter. That is where the creeping comes in. I have seen errors repeated over and over again in medical records in things like when symptoms started and what happened to cause a current medical problem to develop.
In an effort to be quick, doctors and nurse sometimes “copy and paste” parts of the medical record from prior visits, rather than taking the time to ask the questions again on each visit. If the doctors and nurses start out on the wrong track, there can be a serious safety risk to the patient.
One area where I have seen this happen over and over is the medications list. It is vitally important for this to be updated on each visit, to make sure that the doctor does not prescribe a new medication that should not be used at the same time as another medicine that the patient is already taking.
Studies have shown that when doctors and nurses cut and paste information in a medical record, it can lead to missed drug allergies, incorrect discharge instructions and even flawed lab results. It is a big problem.
Experts recommend that electronic medical record systems should have protections that identify copy-and-pasted content, to show the source, context, author, and date and time of the original document. Many systems, though, are still lacking.
Texas Medical Board Rule 165.1 addresses these problems and shows that these types of mistakes are unacceptable. The rule requires all non-biographical populated fields, contained in a patient's electronic medical record, to contain accurate data and information pertaining to the patient based on actual findings, assessments, evaluations, diagnostics or assessments as documented by the physician.
Modifying medical record entries
The Medical Board rule is clear that doctors and nurses cannot go back and change a patient’s medical record secretly or in a willy-nilly fashion. Rule 165.1 says that any amendment, supplementation, change, or correction in a medical record not made contemporaneously with the act or observation shall be noted by indicating the time and date of the amendment, supplementation, change, or correction, and clearly indicating that there has been an amendment, supplementation, change, or correction.
One of the nice things about electronic medical record systems is that they create an audit trail for each and every entry or modification to a medical record. As experienced medical malpractice lawyers, we know how to obtain this information, which is caused an audit trail. The audit trail contains information about who made a medical record entry or modification, the date and time when it was made, and even what computer terminal was used to do it.
We are here to help
If you or someone you care has been injured by medical malpractice, call 281-580-8800 for a free evaluation by the Houston medical malpractice lawyers at Painter Law Firm. We put our experience to work for our clients and know how to get to the bottom of medical records—even those that may be incomplete or have been altered in some way.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
On 4/1/2018, the new law will end the current practice where doctors can secretly enter a DNR order against patient and family wishes [...]read more
This article was originally published in the September/October 2017 edition of "The Houston Lawyer" magazine [...]read more
On 4/1/2018, the new law will end the current practice where doctors can secretly enter a DNR order against patient and family wishes
This article was originally published in the September/October 2017 edition of "The Houston Lawyer" magazine
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