Altered Records Undermine a Defense

It is an impulse that almost any physician may feel: The tug to add to the medical chart of a patient who has just filed a legal complaint. Unfortunately, acting on such an impulse may make a defensible case less so—while adding personal liability to the physician.

A patient complained to his otolaryngologist/cosmetic surgeon of a lost sense of smell following nasal reduction surgery. Though the patient strenuously denied any problems with sense of smell before surgery, the preoperative progress notes clearly show the patient telling the physician he was having problems smelling.

But would those notes be believed?

The patient first presented to Dr. O with complaints of nasal congestion. Dr. O’s differential diagnosis was a nasal septum deviation, allergy, possible sinusitis and possible URI. Dr. O recommended nasal reduction surgery, together with an exam of the nasopharynx to rule out pharyngeal cancer. One week later, for the pre-operative exam, Dr. O noted that the patient’s condition was somewhat better and that the patient “has allergies.” Dr. O gave the patient a pre-operative antibiotic.

At a third visit two weeks later, Dr. O noted that the “operation and complications were explained” and that there was “no guarantee from the operation of a perfect result.” Both the second and third progress notes refer to the patient having some difficulty smelling.

The surgery went without complication. The patient missed his immediate post-operative appointments but returned three months later complaining of a “one-week history of a nasal congestion and decreased smell.” Three more visits brought continuing complaints of lost smell. A neurology consult came back negative. The patient sued for alleged medical negligence.

At Dr. O’s deposition, the patient’s attorney revealed two sets of copies of Dr. O’s chart. The first set contained no pre-operative references to lost smell. The second set did. (The patient’s attorney obtained the first copy before litigation had commenced.) Dr. O testified that after learning of the lawsuit, he added to the chart in order to accurately document the events.

That explanation did not satisfy the patient’s attorney, who quickly obtained court approval to add allegations of fraud and spoliation of evidence to the medical malpractice complaint.

Further, CAP denied Dr. O coverage under the MPT Agreement’s exclusion of claims services “where any medical records of any person have been created, altered, or modified by or at the direction of such MPT Member, with an intent to defraud or deceive.” (Article VIII, Section 5(a)(7).

The irony in Dr. O’s actions was that the damage to his credibility turned a case with no apparent negligence into one that could not be defended. In adding the exclusion for altered records to the Trust Agreement, the MPT membership said that in such cases, the physician will be solely responsible for payment.

If a record does merit a bona fide correction, the change must be “made in a manner so that the original entry remains legible and the correction is dated and initialed by the MPT Member,” according to the MPT Agreement.

Anything else can be very costly.

Gordon Ownby, CAP-MPT’s general counsel, can be reached at gownby@cap-mpt.com.