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Credibility Issues Arise When Doctor Alters Patient Records

On July 12, 2017, 35-year-old Laurie Morrison stepped into the office of George Burke, DC, as a new patient for evaluation and possible low back pain treatment. She had been experiencing pain for the previous several days, and she described an achy, stabbing pain in her left and right anterior and posterior thighs.

Dr. Burke evaluated Morrison, and his findings included a closed sacrum and sacrum sprains and strains in the sacroiliac region. Dr. Burke rendered treatment in the form of adjustments to Morrison’s sacral region and lumbar areas, as well as inferential therapy to the lower back region and trigger point therapy to the sacral region and lumbar spine. The purpose of the inferential therapy was to promote relaxation and strengthening while abating soft tissue congestion. There was no informed consent discussion with the patient, and prior records and radiology reports were not considered.

After leaving Dr. Burke’s office, Morrison felt relief from her pain. She then canceled her next appointment stating that she “felt great.”

In December 2017, Morrison again experienced low back pain. Therefore, she returned to Dr. Burke’s office for treatment on December 14, 2017. She explained that her back began to bother her again after lifting heavy boxes at home.

Morrison rated her pain a ten out of ten. She described numbness and a return of an achy, stabbing sensation. Dr. Burke performed a manual adjustment of the sacral region and lower back area, as well as trigger point therapy to the sacral region and lumbar spine.

Morrison didn’t return for a follow up until January 23, 2018. By then her low back pain was even more severe. She was experiencing numbness and an achy stabbing pain that radiated to her left and right shins. Dr. Burke then adjusted her lumbar spine.

When her pain did not subside, Dr. Burke took Morrison to another room and placed electrodes on her back. During this inferential treatment, Morrison began experiencing bladder incontinence. Therefore, she immediately left the DC’s office to see her primary care physician. The PCP sent her to the emergency room, where she was given a MRI, revealing a large herniation of the L5-S1 disc. She underwent emergency surgery.

The Case

Shortly after her surgery, Morrison requested her records from Dr. Burke. A year later, Morrison’s counsel sent Dr. Burke, a second request for records to which he complied.

Approximately three years after her last chiropractic treatment, Morrison filed a lawsuit against Dr. Burke alleging, among other things, malpractice and failure to obtain informed consent. She alleged that Dr. Burke altered the records from her December and January visits after he found out her pain was caused by a disc herniation.

Discovery revealed that Dr. Burke’s recordkeeping system allowed for alterations. It was noted that the records for the December visit were extremely similar to the records from the July visit, and Morrison’s expert intimated that they were copied and pasted.

Furthermore, there were two versions of the pain diagram for the December visit produced before the suit was filed. The first indicated the patient’s pain was in her left gluteal region radiating to the thigh. This was consistent with Morrison’s account and the exam billing records. The second diagram indicated the patient’s pain was in both gluteal areas and her anterior and posterior thighs. In this diagram, there was a notation ruling out disc herniation.

The January record did not appear to be contemporaneously written either—Dr. Burke produced two different pain diagrams at different times. The visit notes also appeared to have been altered after the incident. The visit note initially stated that Morrison would see her PCP that day for an MRI scan and medication, indicating that her condition was severe. However, Dr. Burke’s notes subsequently stated that he recommended the patient perform at-home exercises and return for treatment three days per week.

A plaintiff expert noted that Dr. Burke’s second recommendation would not be consistent with his initial notation, as it did not represent the patient’s severe condition. This expert alleged it was more likely that Dr. Burke added the notation about the patient visit to her PCP after the fact. He speculated Dr. Burke did this to make it appear as though the patient received medical care as a result of his referral and the disc herniation was in his clinical line of thought.

Unfortunately for the defense, there was no way to dispute that the patient’s records were altered. Compounding the defense’s challenge, there was no signed informed consent form on file.

Morrison had her own credibility questioned when it became apparent she was not forthcoming in her complaint. She alleged she suffered permanent physical injuries and profound impairment to be able to enjoy life. Additionally, Morrison testified she was unable to run, had difficulty jogging and could no longer ride a bike for extended periods.

However, the defense was able to confront Morrison with photographs and Facebook posts that called into question the severity of her injuries. These revealed she had been biking and jogging consistently in recent months.

The Result

While there were no indications that Dr. Burke’s treatment of Morrison was negligent, the fact that he altered the records made a defense verdict exceedingly unlikely. Additionally, the absence of an informed consent form added to the defense team’s difficulties.

Although Morrison lied throughout her deposition, this was not enough for the defense to win the case. Nonetheless, it did seriously undermine her credibility, and consequently, the case was able to be settled for a minimal amount.

What Can We Learn?

Never alter patient records. Even if your care and treatment is perfectly within the standard of care, any record alteration will make it extremely difficult to build a defense in your case. Also be aware that “metadata”—any information you’ve entered into your computer—can be retrieved by experts even when you think you deleted the information. Always keep thorough and contemporaneously written records for each patient.

Additionally, remember to have a thorough informed consent discussion with the patient and obtain their informed consent, in writing, before beginning treatment.

In terms of electronic recordkeeping, make sure to use a system that tracks any corrections/changes. In other words, use a system that retains and makes viewable the original entry with dates/times and identification of the person making a change.

If you experience an event beyond your control, like a flood, that destroys patient records, it is best to try and salvage what you can from the existing records. It is not advised to try and “re-create” the records from memory.

Any indication that a patient’s record was changed or created after the fact will raise cause for concern in a malpractice case. Altering records will also potentially expose you to discipline from your licensing board should they become aware of the issue.

Most malpractice cases involve patient allegations of an injury or a violation of a standard of care. This case, however, was not about the care provided. Instead it centered on the credibility of the doctor and the patient, and credibility is almost impossible to restore when issues of ethical violations and fraud are brought into a case. Regardless of whether the clinical aspect of the care was appropriate, the credibility of the doctor is never restored with the jury. Despite any lack of patient credibility, a jury would tend to view the doctor’s actions as self-serving. Dr. Burke was fortunate that his patient had equally dubious credibility as it permitted a reasonable settlement of the case.

Being involved in a malpractice case is never ideal. But, the best way to obtain a favorable resolution is to have diligent and contemporaneous records of the treatment. Any sign of record alteration will make matters much worse.

Although this case study is based on a real case, names, dates and details have been changed to protect patient and doctor privacy.

Rebecca L. Dalpe’s areas of practice include medical malpractice defense, health care law, representation of medical professionals before regulatory boards, agencies and committees, and more. She has received an AV Preeminent Rating, the highest rating for Ethical Standards and Professional Excellence from the international rating directory, Martindale-Hubbell. Ms. Dalpe has been repeatedly named a Massachusetts “Rising Star” and “Super Lawyer” attorney by Boston Magazine. She has been named by Boston Magazine as one of the top 100 lawyers in Massachusetts. Boston Magazine has also named her as one of the top 50 women lawyers in New England.

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