Spoliation: Record Retention, Destruction, and Alteration

CHAPTER 5 Spoliation: Record Retention, Destruction, and Alteration



Alan C. Hoffman, J.D., F.C.L.M. , S. Sandy Sanbar, M.D., Ph.D., J.D., F.C.L.M.




GOLDEN RULES



1. “In God we trust. All others must document.” (JCAHO)

2. Thou shalt not tamper with medical records.

3. Practice to deceive and a tangled web thou shalt weave.

4. Errors should be corrected promptly once detected.

5. After a record is made, errors should be corrected or edited only by using the proper methodology.

6. Establish and implement policies for retention and destruction of medical records, including electronic or computerized medical records.


MEDICAL RECORDS


Medical records are legal documents and health care providers should be careful when creating and maintaining them. The medical record consists of more than just a patient’s chart in that it can include bills, reports of laboratory tests, sundry procedures, and various radiological and other techniques, as well as old tests and/or results. Spoliation, i.e., alteration of medical records, is becoming a significant problem. Written, typed, or computer-generated words about a patient’s medical history, chief complaints, physical examinations, nurses’ notes, treatment, discharge instructions, and follow-up encounters frequently determine the outcome of a medical malpractice lawsuit. Some physicians or other health care providers may resort to written entries, even if they were changed, in order to “explain” or otherwise deflect liability for their medical negligence.


Malpractice attorneys know that evidence of spoliation of records in medical negligence actions can strengthen the client’s case. Consequently, plaintiff attorneys are becoming more sophisticated in reviewing medical charts. They apply the mantra “Assume nothing,” and believe that record tampering is far too common to think that it does not happen in a malpractice case.


Jurors tend to believe physicians and what they see in black and white. Proof of altered records is a sure way to anger and alienate jurors.




CASE PRESENTATIONS



Case 1 Cut and Paste Entries.


Anna Ware, a medical doctor, was hired to see and treat patients at the Bedside Clinic, which was owned by Charleton Hospital. There was a regular referral pattern between Bedside Clinic and Charleton Hospital, but there was no open disclosure that Bedside Clinic was owned by Charleton Hospital, and that Dr. Ware was in fact an employee of Charleton Hospital. Dr. Ware had a custom and practice of writing her notes when seeing a patient and putting those in the patient file.


At some point in time, while Bedside Clinic was still owned by Charleton Hospital, Dr. Ware as well as other doctors in Bedside Clinic changed their practice behavior and went to a dictation system. The doctors took notes in the office but in addition dictated after the patient left. When the notes came back, doctors cut and pasted the notes over the original handwritten note. This practice amounted to spoliation of evidence. The Bedside Clinic was owned and controlled by Charleton Hospital, and as such, JCAHO applied. Hospital records cannot be altered, changed, or amended except by drawing a line if there is an error, writing the word “error” next to the error, and signing and dating the changed entry. By pasting over handwritten records, a handwriting expert was unable to view the inks in the original records and the fibers to verify whether or not they were written by different pens at different times, and therefore the records were deemed altered.


The appropriate way to supplement the original handwritten entry was to cut and paste the typewritten entry underneath and initial the date on the entry as to when the cut and pasted entry was attached to the record.



Case 2 Destruction of Documents.


Hospital Systems, Inc. controls a number of hospitals in its system including Cornucopia Hospital. Each hospital was required to have various hospital policies and procedures including departmental policies and procedures for the Department of Radiology, Laboratory Department, and others. One of the departments was known as a Transitional Care Unit or skilled nursing facility within the hospital. The skilled nursing facility had a Medical Director and the policies and procedures set forth criteria as to what doctors could admit to the Unit and what doctors were required to write on patients. The doctors had a general policy and procedure for record retention and destruction. Cornucopia Hospital did not follow its policies and procedures but destroyed thousands of pages of policies and procedures without any destruction log whatsoever. During the same period, Hospitals, Inc. had developed a series of systemwide policies including a systemwide policy and procedure for record retention and destruction, which was very specific and which by its terms covered all of its operating units and subsidiaries.


Cornucopia Hospital was a subsidiary hospital completely owned by Hospitals, LLC, which was owned and controlled by Hospitals, Inc. The latter also had other ventures including nursing homes and other community facilities and practices. Cornucopia Hospital failed to follow the systemwide policy of the hospital and failed to follow its own policy, albeit a policy that was different with regard to record retention and destruction.


Hospital policies may in some situations have a bearing on a physician’s care. Because Cornucopia Hospital destroyed prior applicable policies, a defendant physician was not able to turn to the policy in a malpractice case relative to who was responsible for a patient in the Transitional Care Unit at a given point in time, based upon the hospital’s policies and procedures.



DISCUSSION OF ISSUES


Errors should be corrected promptly once detected. After a record is made, errors should be corrected or edited only by using the proper methodology. The proper method is for the physician to draw a single line through the incorrect information without obliterating it. Then the correct information is recorded above, below, or beside the original incorrect data, and is initialed and dated. It is important to be able to read what has been edited or changed in the clinic or hospital records.


It is inappropriate to delete recorded information with correction fluid. Erasing, blotting out, or adding information at a different time than the original note was made are not appropriate ways to correct a record.



Definition of Spoliation


Spoliation is defined as the “intentional or negligent destruction, mutilation, alteration or concealment of evidence.” An act of spoliation increases the likelihood that one party gains an unfair advantage in litigation. Spoliation of evidence may be committed by a party to a lawsuit, a party’s agent or attorney, or even a nonparty. Spoliation arose in an effort to equalize the playing field in the judicial system as against an individual for not being able to present credible evidence to the fact finder.


Spoliation can include medical records, financial records, telephone records, billing records, pharmacy prescriptions, policies, and procedures as well as physical evidence, namely medical records, or mundane physical objects, such as hospital beds or medical equipment.


Common types of spoliation include adding to an existing record at some later date, the intentional placement of inaccurate medical information in the records, lack of information regarding the exact time of patient treatment by nurses, the recording of the same or constant vital signs (so-called “perfect vital signs syndrome”), the recording of treatment provided at a date after the patient has been discharged or transferred to another hospital or extended care facility, the omission of significant medical information or “fraudulent concealment,” dating a record as if it were written at a previous date, the complete rewriting or retyping of part of the medical record (e.g., discharge summary), and hiding or destroying the medical record.



The Tort of Negligent Spoliation


A civil cause of action for negligent spoliation of evidence is available in at least four jurisdictions, including Florida, Montana, Illinois, and New Jersey. The elements of this tort are as follows: the existence of a potential civil claim; a legal and contractual duty to preserve evidence relative to that action; destruction of the evidence; significant impairment of the ability to prove the potential civil action; causation between the destruction of evidence and the impairment; and damages.


In most states that recognize negligent spoliation, the duty to preserve records arises only when the spoliator voluntarily undertakes to preserve the evidence, the spoliator enters an agreement to preserve, the other party has specifically requested that the evidence be preserved, or that a duty exists by virtue of statute, especially a relationship between the spoliator and the victim.


In order to protect and successfully perfect a prima facie case under a negligent spoliation theory, one must create a record from the moment the injury occurred. A simple request for evidence to be preserved is not enough. If one obtains a commitment from a defendant, it must be backed up in writing. The writing must state pursuant to the conversations of such and such date that the other party has agreed to preserve the instrumentality or the evidence. If an agreement cannot be fulfilled, then the alternative is to seek court protection through an order of protection to preserve evidence. If there is likelihood that evidence will be destroyed upon commencement of the lawsuit, an ex parte order of protection may be sought; however, one would have to demonstrate a probability of irreparable harm in order to succeed.


Spoliation of evidence may be committed by a party to a lawsuit, a party’s agent or attorney, or even a nonparty. Most often, spoliation issues arise in the context of civil cases. However, spoliation of evidence may also arise in the context of a criminal case.

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Mar 25, 2017 | Posted by in GENERAL & FAMILY MEDICINE | Comments Off on Spoliation: Record Retention, Destruction, and Alteration

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