While most nursing homes are honest, a significant minority treat State funds as a license to steal.
They do not employ sufficient nursing staff to perform necessary or documented services.
They under-staff their facilities for financial reasons.
Medical records are tampered with. Adding to the existing record at a later date without indicating the addition is a late entry, placing inaccurate information into the record, omitting significant facts, dating a record to make it appear as if it were written at an earlier time, rewriting or altering the record, destroying records, or adding to someone else’s notes.
Detection of tampering. Fraudulent addition to a record for the purposes of covering up an incident can be detected by current technology. Expert document examiners will need the original medical record in order to analyze it for tampering. This will enable them to detect differences in ink, look for indentations caused by writing on sheets above the questioned document, and perform chemical analysis of the document. There are clues used to detect altered records.
Nurses are familiar with the information that should be recorded in the medical record and can quickly spot missing pieces, information out of order and inconsistencies in the medical record. For example, one hospital was asked to produce the medical record for a six-month admission. The patient was in an intensive care unit for several months. The hospital’s medical records department failed to copy a few pages of the multipage critical care plan that covered the first 24 hours after the patient was brought into the ICU. This time frame was critical to the the ensuing legal case. Two shifts’ worth of (admission) documentation was not copied.
Implications of tampering. If the plaintiff can show that a defendant is guilty of spoliation of evidence, the burden of proof may shift to the defendant. When medical records are missing for unexplainable reasons, a plaintiff is at a disadvantage in the legal process and should not be prejudiced because of the missing records. Pages, sections, and entire medical records have been known to vanish, as well as be altered or substituted.
Tampering with the records complicates the successful defense of a malpractice case and raises questions in the plaintiff attorney’s mind about the quality of care that was rendered. “Practitioners sometimes try to cover up pure errors in judgment that are not negligent and not subject to recovery of damages. The appearance of a cover-up is devastating in court. The changing of a record may require the defense counsel to settle the case out of court even if no negligence has occurred. Once the accuracy of the record is challenged, the integrity of the entire record becomes suspect. When records are destroyed, the plaintiff attorney can request sanctions against the defendants for failure to comply with the orders to produce documents. The plaintiff attorney can argue in court that the records were intentionally altered or lost because of conspiracy or fraud. Successful arguing of “aggravated or outrageous conduct” can result in the granting of punitive damages.
Adding to an existing record at a later date. In reviewing medical records, the attorney may find incomplete records. The temptation is high to alter the medical record. Healthcare professionals are taught that the correct way to add to an existing record is to document the time and date that the addition is being made. The addition should not be squeezed into an earlier entry but should appear on the next available line in the medical entry.
Placing inaccurate information into the record. False information in a medical record can sometimes be hard to detect after the fact. At times, common sense or the clinical knowledge of an expert witness will lead to the suspicion that the documentation is not entirely truthful. At other times, the plaintiff will convincingly assert that the information is inaccurate.
Omitting significant information. Omitted information in a care plan may be easy to spot. For example, some neonatal and pediatric flow sheets are set up with blanks to be filled in every hour to indicate that an intravenous site was examined for signs of infiltration. A plan of this nature would be an important piece of evidence in a case involving a child with an intravenous associated injury. The deliberate omission of significant information may be more difficult to detect. Often common sense is applied to identify the information that is missing. In one case, the medication records were used to establish that the patient had extensive pain even though the nurses’ notes did not comment on the pain.
Dating a record to make it appear as if it were written at an earlier time
Many people involved in malpractice litigation recognize that more tampering occurs in doctor’s office records than in the hospital, where it is easier to spot an alteration. There are clues used by attorneys and expert document examiners to detect fraudulent dating of records.
Rewriting the record. One of the most damaging admissions occurs when a healthcare professional testifies that a medical record was rewritten. There can be completely innocent reasons why a medical record was rewritten. Occasionally a page from a chart will be recopied if it is torn or liquid is spilled on it. The appropriate procedure to follow when this occurs is to identify the page as rewritten. The original page should be retained in the medical record. The deliberate rewriting of a record with attendant changes in the content, timing, and sequence of events is tampering with the record.
Destroying medical records. The destruction of pages, sections or an entire medical record creates a strong suspicion that the information in the record was so damaging that it had to be concealed. When a record or pages of it disappear, part of the discovery process involves determining who had access to the record. Large portions of medical record disappeared in a birth injury case.
Adding to someone else’s notes. Even though it is unacceptable for one health care professional to alter someone else’s documentation, it happens, and more commonly than attorneys would believe. Physicians have altered nursing records, and nurses have altered each other’s notes. Physicians may be very casual about editing someone else’s notes because of the practice of overseeing the documentation of residents.
Summary. Tampering with the records can have profound implications for the attorney. It will make the defense of a malpractice case difficult and the pursuit of a settlement easier for the plaintiff. The attorney who suspects that tampering has occurred needs to obtain validation of these concerns in order to make the appropriate strategic moves.