- Email: [email protected]
Legally Speaking: Spoliation of Medical Record
L
E
G
A
L
s
L y
p
E A
K
N
G
Darnell Roth, RN,CRNI,AA,LNC
Spoliation of Medical Record ata contained in the medical record are crucial when determining if there was negligence in medical malpractice cases. Incidences of spoliation (altering or tampering) of the medical record, or a portion thereof, is surprisingly not unusual and, when discovered, can be devastating in court. The purpose of this article is to address spoliation, its definition, ways it is demonstrated, methods of detection, and its consequences on case outcome. As part of the discussion, two real cases from my files are cited. Although these cases have been adjudicated or settled, no names or venues are provided. According to Blacks Law Dictionary, spoliation is "The intentional destruction, alteration or concealment of evidence .. .If proven, spoliation may be used to establish that the evidence was unfavorable to the party responsible.'" In medical malpractice cases, spoliation may involve lost, mutilated, altered, concealed, or destroyed documents that constitute the medical record. The true incidences of spoliation of medical records will never be known; however, every malpractice attorney I have questioned regarding the issue reported that they had encountered such incidents.
2. Falsifying the record by providing inaccurate data. 3. The omission of significant data. 4. Dating a record to imply that it was written at an earlier time. 5. Rewriting the record. 6. Destruction of the record or a portion thereof. 7. Adding data to someone else's notes. 2
D
Demonstration of Spoliation Spoliation of the medical record can be demonstrated by the following: 1. The addition of entries to the existing record at a later date without an indication that the addition is a late entry.
Correspondence concerning this article should be addressed to [email protected] 001: 10.2309/java.1 0-4-5
164
.JAVA
Vol
Late Entries The most common alterations found in medical records are inappropriately documented late entries. Health care profeSSionals are responsible for ensuring that when data are added to an existing record, the data added should be identified as a late entry accompanied by the date and time the addition was entered into the record. 3 Falsified/Fabricated Entries Falsified entries include those that are backdated or changed at a later date; such activity is illegal and, if proven, can result in the offending party being criminally prosecuted. Fabrication occurs when a health care provider invents a set of circumstances, usually in retrospect, to justify the outcome of his or her actions. 4 Case example: An Emergency Department physician at hospital X ordered the administration of intravenous (N) push phenytoin sodium (Dilantin) to an infant who had recent seizure activity. Within 30 minutes, there was evident vascular impairment distal to the injection site of the right upper extremity. The infant was subsequently transferred to a local children's hospital where, despite treatment, amputation of the extremity was required within 36 hours of the initial phenytoin sodium N administration. The day of the surgical amputation, the originally treating physi-
10
No
4
2 0 0 5
cian wrote an addendum to his progress
notes that read, "Nurse was informed to administer Dilantin slow N push and to check for blood return throughout administration of the drug." In their depositions, both registered nurses present during the treatment of the infant in the emergency department testified that no such instructions were issued by the physician. The case was settled for a confidential amount in favor of the plaintiff prior to trial.
Omission of Significant Data Omitted data on a flow sheet or printed form are generally easily detected.. Omission of true data, as required by established policy/procedure, although not a written act, constitutes an altered record because the record does not reflect the care provided and the patient's response. 4 1 Case example: An infant who was receiving an infusion of dextrose 5% in 0.25 normal saline (NS), with 4 mEq KCL in the dorsal aspect of the left foot, experienced a pronounced extravasation involving the entire left lower extremity, which subsequently required extensive debridement and skin grafting. Established hospital policy/procedure mandated that assessment of a pediatric infusion site be performed hourly, with the findings documented in the designated section of the N therapy flow sheet; however, according to the flow sheet there was a five-hour time gap in which no assessment was documented. This case also settled prior to trial in favor of the plaintiff. Dating a Record to Imply That It Was Written at an Earlier Time Clues indicative of fraudulent dating of a record include, but are not limited to the following: unnatural order of
L
E
G
A
L
L
writing, ink margins, spacing, and differing dates that blend together. 2 Determining if a document actually written on the date presented can be achieved by forensic document examiners who compare other documents known to have been written on that date by scrutinizing the handwriting and signatures executed on both dates. 5
Rewriting the Record Certainly, there can be legitimate reasons necessitating rewriting a document, such as the original document having been torn or soiled with a spilled liquid. Defensible action when such an event occurs is to clearly identify the page as rewritten and denoting the reason the rewriting was necessary. The original damaged page should be retained in the medical record.
s
y
p
plClon that the data contained in the missing document(s) were so damaging that it needed to be concealed. Missing records, especially if they reference the event involved in the alleged malpractice lawsuit, are always difficult to explain; thus, the safeguarding of medical records cannot be overemphasized.
Adding to Someone Else's Notes Although it is unacceptable practice, it is not unusual to discover that a health care proVider has altered another's document. Although the intent may have simply been to clarify an issue or sequence of events, such action may prove extremely challenging for the defense.
Detection of Spoliation 1. Entries made with a different ink or
Destruction of Medical Records All knowledgeable
health care providers should understand that the destruction of pages or sections of a medical record will create profound sus-
pen. 2. Notes written with incorrect dates or times or notes that do not correlate with other documents. 3. Pages with missing patient name/identification imprint.
E
A
K
N
G
4. Lengthy narratives that are out of sequence with the rest of the medical record. 5. Entries inscribed on top of each other or abutting other entries. 6. Entries written on edge or margins of document. 7. Erasures or other obliterations. 8. Differences in handwriting. 9. Writing crowded around other entries. 2•G
Consequences of Spoliation When there is spoliation of the medical record by a defendant, a case may end up in a settlement for full policy limits, even though the case could have been otherwise successfully defended. On the other end of the spectrum, spoliation by the plaintiff may result in the plaintiff's case." being thrown out of court. Spoliation of evidence can result in criminal penalties in some states. Spoliation involving a medical record may be considered unprofessional conduct by a professional board, which could lead to action against the professional to practice.'
REFERENCES Blacks Law Dictionary. 8th ed. Eagan, MN: West Publishing Co. 2. Iyer P, ed. Nursing Malpractice. Tucson, AZ: Lawyers and Judges Publishing Co.; 1996:128-135. 3. Sullivan GH. Does your charting meaRegistered Nurse. sure up? 1.
2004;67(5}61-65. 4. Bogart JB. Legal Nurse Consulting Principles and Practice, American Association of Legal Nurse Consultants. Boca Raton, FL: CRC Press; 1998. 5. Will E]. Legal nurse consultants and forensic document examiners working
200 5
Vo I
together. ] Legal Nurse Consulting. 2005;16(2):13-18. 6. Altered Medical Records. Clinical Legal Communicator Newsletter, 1999. 7. Klepatsky A. Investigating spoliation. ] Legal Nurse Consultants. 2004;15(4):2325.
ION
0
4
.JAVA
167
E
G
A
L
s
L y
p
E A
K
N
G
Darnell Roth, RN,CRNI,AA,LNC
Spoliation of Medical Record ata contained in the medical record are crucial when determining if there was negligence in medical malpractice cases. Incidences of spoliation (altering or tampering) of the medical record, or a portion thereof, is surprisingly not unusual and, when discovered, can be devastating in court. The purpose of this article is to address spoliation, its definition, ways it is demonstrated, methods of detection, and its consequences on case outcome. As part of the discussion, two real cases from my files are cited. Although these cases have been adjudicated or settled, no names or venues are provided. According to Blacks Law Dictionary, spoliation is "The intentional destruction, alteration or concealment of evidence .. .If proven, spoliation may be used to establish that the evidence was unfavorable to the party responsible.'" In medical malpractice cases, spoliation may involve lost, mutilated, altered, concealed, or destroyed documents that constitute the medical record. The true incidences of spoliation of medical records will never be known; however, every malpractice attorney I have questioned regarding the issue reported that they had encountered such incidents.
2. Falsifying the record by providing inaccurate data. 3. The omission of significant data. 4. Dating a record to imply that it was written at an earlier time. 5. Rewriting the record. 6. Destruction of the record or a portion thereof. 7. Adding data to someone else's notes. 2
D
Demonstration of Spoliation Spoliation of the medical record can be demonstrated by the following: 1. The addition of entries to the existing record at a later date without an indication that the addition is a late entry.
Correspondence concerning this article should be addressed to [email protected] 001: 10.2309/java.1 0-4-5
164
.JAVA
Vol
Late Entries The most common alterations found in medical records are inappropriately documented late entries. Health care profeSSionals are responsible for ensuring that when data are added to an existing record, the data added should be identified as a late entry accompanied by the date and time the addition was entered into the record. 3 Falsified/Fabricated Entries Falsified entries include those that are backdated or changed at a later date; such activity is illegal and, if proven, can result in the offending party being criminally prosecuted. Fabrication occurs when a health care provider invents a set of circumstances, usually in retrospect, to justify the outcome of his or her actions. 4 Case example: An Emergency Department physician at hospital X ordered the administration of intravenous (N) push phenytoin sodium (Dilantin) to an infant who had recent seizure activity. Within 30 minutes, there was evident vascular impairment distal to the injection site of the right upper extremity. The infant was subsequently transferred to a local children's hospital where, despite treatment, amputation of the extremity was required within 36 hours of the initial phenytoin sodium N administration. The day of the surgical amputation, the originally treating physi-
10
No
4
2 0 0 5
cian wrote an addendum to his progress
notes that read, "Nurse was informed to administer Dilantin slow N push and to check for blood return throughout administration of the drug." In their depositions, both registered nurses present during the treatment of the infant in the emergency department testified that no such instructions were issued by the physician. The case was settled for a confidential amount in favor of the plaintiff prior to trial.
Omission of Significant Data Omitted data on a flow sheet or printed form are generally easily detected.. Omission of true data, as required by established policy/procedure, although not a written act, constitutes an altered record because the record does not reflect the care provided and the patient's response. 4 1 Case example: An infant who was receiving an infusion of dextrose 5% in 0.25 normal saline (NS), with 4 mEq KCL in the dorsal aspect of the left foot, experienced a pronounced extravasation involving the entire left lower extremity, which subsequently required extensive debridement and skin grafting. Established hospital policy/procedure mandated that assessment of a pediatric infusion site be performed hourly, with the findings documented in the designated section of the N therapy flow sheet; however, according to the flow sheet there was a five-hour time gap in which no assessment was documented. This case also settled prior to trial in favor of the plaintiff. Dating a Record to Imply That It Was Written at an Earlier Time Clues indicative of fraudulent dating of a record include, but are not limited to the following: unnatural order of
L
E
G
A
L
L
writing, ink margins, spacing, and differing dates that blend together. 2 Determining if a document actually written on the date presented can be achieved by forensic document examiners who compare other documents known to have been written on that date by scrutinizing the handwriting and signatures executed on both dates. 5
Rewriting the Record Certainly, there can be legitimate reasons necessitating rewriting a document, such as the original document having been torn or soiled with a spilled liquid. Defensible action when such an event occurs is to clearly identify the page as rewritten and denoting the reason the rewriting was necessary. The original damaged page should be retained in the medical record.
s
y
p
plClon that the data contained in the missing document(s) were so damaging that it needed to be concealed. Missing records, especially if they reference the event involved in the alleged malpractice lawsuit, are always difficult to explain; thus, the safeguarding of medical records cannot be overemphasized.
Adding to Someone Else's Notes Although it is unacceptable practice, it is not unusual to discover that a health care proVider has altered another's document. Although the intent may have simply been to clarify an issue or sequence of events, such action may prove extremely challenging for the defense.
Detection of Spoliation 1. Entries made with a different ink or
Destruction of Medical Records All knowledgeable
health care providers should understand that the destruction of pages or sections of a medical record will create profound sus-
pen. 2. Notes written with incorrect dates or times or notes that do not correlate with other documents. 3. Pages with missing patient name/identification imprint.
E
A
K
N
G
4. Lengthy narratives that are out of sequence with the rest of the medical record. 5. Entries inscribed on top of each other or abutting other entries. 6. Entries written on edge or margins of document. 7. Erasures or other obliterations. 8. Differences in handwriting. 9. Writing crowded around other entries. 2•G
Consequences of Spoliation When there is spoliation of the medical record by a defendant, a case may end up in a settlement for full policy limits, even though the case could have been otherwise successfully defended. On the other end of the spectrum, spoliation by the plaintiff may result in the plaintiff's case." being thrown out of court. Spoliation of evidence can result in criminal penalties in some states. Spoliation involving a medical record may be considered unprofessional conduct by a professional board, which could lead to action against the professional to practice.'
REFERENCES Blacks Law Dictionary. 8th ed. Eagan, MN: West Publishing Co. 2. Iyer P, ed. Nursing Malpractice. Tucson, AZ: Lawyers and Judges Publishing Co.; 1996:128-135. 3. Sullivan GH. Does your charting meaRegistered Nurse. sure up? 1.
2004;67(5}61-65. 4. Bogart JB. Legal Nurse Consulting Principles and Practice, American Association of Legal Nurse Consultants. Boca Raton, FL: CRC Press; 1998. 5. Will E]. Legal nurse consultants and forensic document examiners working
200 5
Vo I
together. ] Legal Nurse Consulting. 2005;16(2):13-18. 6. Altered Medical Records. Clinical Legal Communicator Newsletter, 1999. 7. Klepatsky A. Investigating spoliation. ] Legal Nurse Consultants. 2004;15(4):2325.
ION
0
4
.JAVA
167