Medical Malpractice Insights: Amend a medical record – NEVER alter one

Here’s another case from Medical Malpractice Insights – Learning from Lawsuits, a monthly email newsletter for ED physicians. The goal of MMI-LFL is to improve patient safety, educate physicians and reduce the cost and stress of medical malpractice lawsuits. To opt in to the free subscriber list, click here.

Chuck Pilcher, MD, FACEP

Editor, Med Mal Insights

Amend a medical record – NEVER alter one

Drug-seeking patient hits $1.5 million jackpot

Facts: A 45-year-old male patient is seen by a PA in a community clinic for bone pain which he claims is related to a prior diagnosis of multiple myeloma (MM). He requests pain control and is give an opioid, which is subsequently refilled multiple times over the next year. The PA finally becomes suspicious when x-rays are normal and no clinical deterioration is apparent. The patient is confronted and confesses that he does not have MM. He admits his addiction and says he’s just worried about going into opioid withdrawal. The PA’s supervising physician is consulted, and the patient is told he must see an addiction medicine specialist. The patient feels that he is being treated improperly, being denied the medication he needs and being inappropriately discharge from care. He consults an attorney who obtains his medical record, on which basis a claim is filed. After a year of back and forth dialog, the defense requests a settlement conference. The attorney requests an updated copy of the records and discovers undated discrepancies from the first record. The changes are clearly alterations, not amendments. The new records attempt to justify the actions taken by the PA and supervising physician and include warnings about the risks of opioids and the patient’s history of substance abuse. The plaintiff’s attorney recognizes that medical negligence would be difficult to prove, but he now has a claim for alteration of medical records during the course of a medical malpractice lawsuit. Both sets of records are presented during the settlement conference.

Plaintiff: You altered my medical record to make your care look more appropriate. You even used the same pen to make my record look right.

Defense: I felt I needed to include more detail about your history and physical that I didn’t document earlier. See California Penal Code Secton 471.50  https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=471.5

Result: The parties agreed that medical malpractice claim had no merit – with or without the added chart notes. However, the defense agreed to pay $1.5 million solely on the claim of falsification of medical records. The names of the parties involved were not disclosed.

Takeaways:

• Never alter a medical record.
• You may add an amendment, which must be dated and timed.
• Use due diligence when treating chronic pain.
• “Fool me once, shame on you. Fool me for a year, shame on me.”
• One could be excused for viewing this as more of a “shakedown” than a settlement.