As a Houston, Texas medical malpractice lawyer, I frequently meet with patients and family members who express concern that their medical records are inaccurate, or have been changed, altered, or falsified.
When Painter Law Firm files medical malpractice or wrongful death lawsuits on behalf of our clients, the defendant doctors or nurses often claim to have provided care that is not documented in the medical records. When this happens, the defendants invariably testify that their primary responsibility is to provide healthcare, with documentation playing second fiddle. In other words, they say that they were too busy providing care to write down anything.
To a degree, this makes sense. Medical records are not intended to capture every conceivable bit of information. Yet, Texas laws and regulations, and the standard of care, require doctors, nurses, and hospitals to make sure that medical records provide a comprehensive picture of a patient’s status, care provided, and test results. When any of this critical information is missing, it not only creates an issue in litigation, but also presents a danger to patient safety and a gap in the continuity of care.
As an experienced medical negligence attorney, it is always interesting to watch a doctor or nurse squirm on the witness stand when they try to have their cake and eat it too. On the one hand, defendants want the jury to give the medical records great weight, in terms of deciding what actually happened, over the testimony of the patient and family member. On the other hand, defendants still try to offer their own testimony about care that they provided to a patient, which is found nowhere in the medical records.
In most situations, I have found that patient concerns are more akin to sloppy record-keeping by doctors and nurses, rather than intentional altering or falsification of the records. That is not always the case, though.
Falsified medical records
In October 2017, the Delaware Supreme Court disbarred an attorney who represented a doctor in a medical malpractice lawsuit. The lawyer’s offenses include intentionally failing to disclose altered medical record and the doctor’s fraudulent conduct, and failing to correct false testimony. The Delaware Board on Professional Responsibility considered the lawyers actions to be “at best dishonest and at worst criminal which resulted in actual and potential harm to the litigants, the judicial process and the public.”
The disbarment action and decision provide some detail about the conduct of the healthcare providers in the medical malpractice action, which involved the treatment of a baby for jaundice.
In one altered medical record, a physician assistant change the location of the yellowing on the baby from the abdomen to the sternum. In a second altered record, the physician added a sentence indicating that she had instructed the mother to monitor and call the office immediately with any changes because an older sibling had been treated for jaundice and the baby was at increased risk.
The altered records dealt with the key focus of the medical malpractice case, and falsely made it appear that the baby’s mother was at fault for not following the doctor’s instructions.
To recap, a physician and physician assistant falsified or altered medical records. An attorney was disbarred because he did not disclose the physicians altered records and misconduct.
Are you curious about what happened to the physician involved? I checked the State of Delaware licensure website today and was shocked with what I found. The Delaware Board of Medical Licensure and Discipline took no action whatsoever against the physician for the unethical, unprofessional conduct of falsifying medical records.
While the Board did look into the underlying medical care related to the incident, its only criticism of the physician involved the failure to order a total serum bilirubin test within 24 hours of a physician office visit, where the baby’s new jaundice symptoms were seen.
On May 6, 2014, the physician and Board entered into a consent agreement that placed the physician’s medical license on probation for two years, and required her to take a five-hour course covering the diagnosis of jaundice in newborns and the risk factors for kernicterus. In other words, the doctor who committed medical malpractice and then falsified medical records continued to practice medicine uninterrupted, despite a Board investigation.
The story does not end there, though. The doctor subsequently became dissatisfied with the Board’s slap on her wrist, and asked for reconsideration to have her two-year probation voided. The Board held a reconsideration hearing on July 22, 2014, and, to my shock, terminated the physician’s probationary period on that date.
To sum it up, the physician’s attorney was disbarred, but the doctor herself received no punishment for falsifying a medical record. The physician and the Board governing physician conduct reached an agreement for a two-year probation because of the underlying medical malpractice, but the Board shortened the probation to 10 weeks, just because the doctor asked them to do so.
With this type of regulatory and oversight system over physicians and healthcare providers—the one in Texas is no better—it is easy to see why so many patients are suspicious about the accuracy of their medical records.
What you can do
Years ago, I handled a medical malpractice lawsuit against Memorial Hermann Children’s Hospital. The family obtained the patient’s medical records while the patient was still in the hospital. Before the suit, Painter Law Firm requested all of the medical records, under affidavit attesting to their completeness. After we filed the medical negligence lawsuit, the hospital produced another set that it contended was complete. When the latest set appeared incomplete, the hospital produced yet another set of records. In comparing all of the various sets of records, there was a difference of hundreds of pages.
Even after I took the deposition of the hospital’s medical records custodian, I found no evidence that anyone at the hospital deliberately withheld medical records. Clearly, though, I did not have a lot of confidence in the completeness of the medical records, or that hospital’s medical records department, for that matter, at least in that case.
Ever since that experience, I have advised all of my medical malpractice clients to request a set of their medical records before being discharged. Be sure to ask for your medical records under federal law, which requires hospitals and doctors to provide them at a much lower cost than Texas law does. You can read about the federal protections and requirements here.
In the event that you have to pursue a medical malpractice claim, those medical records provide an excellent starting point, in terms of assessing whether or not the records that the hospital or doctor’s office produces later have been altered in any way.
In addition, experienced medical malpractice lawyers, such as you will find at Painter Law Firm, in Houston, Texas, are familiar with how to use the audit trails of electronic medical records to determine if any changes were made. Audit trails in most electronic medical record system record each user’s access to the medical records, including the date, time, and location of access, as well as any documentation or alterations made to the medical record.
Experience matters. If you or a loved one has been seriously injured as a result of medical negligence, call Painter Law Firm, in Houston, Texas, at 281-580-8800, for a free evaluation of your potential case.
Robert Painter is an attorney at Painter Law Firm PLLC, in Houston, Texas. He files medical malpractice and wrongful death lawsuits on behalf of patients and their families against hospitals, physicians, surgeons, pharmacies, and anesthesiologists. Robert Painter is a former editor-in-chief of The Houston Lawyer magazine and a current editorial board member of The Texas Bar Journal. He has been recognized with the prestigious AV preeminent peer rating for professional excellence by Martindale Hubbell.