During litigation involving a missed sepsis claim, it became painfully obvious the EP defendant had altered the medical record to cover up a mistake.

“It became the entire focus of the case,” says Matthew P. Keris, Esq., a shareholder in the Scranton, PA, office of Marshall Dennehey and chair of the firm’s electronic medical record and audit trail litigation practice group.

There were three defendants named in the lawsuit: The hospital (who Keris represented), the EP, and the patient’s surgeon (other attorneys represented the latter two parties). The patient was obese, with a history of reconstructive abdominal surgery, and felt a “pop.” The patient went to the ED, where an EP handled the workup and learned the surgical history. Ultimately, the EP discharged the patient home. “Unfortunately, the patient had a small bowel obstruction that went undiagnosed,” Keris reports.

Days later, the patient returned to the ED in terrible pain. During subsequent surgery, the patient died. After the initial ED visit, the EP’s note was auto-faxed to the surgeon’s office. In that note, the EP stated they talked about the case briefly, and that the patient was told to return to the ED if his problems persisted.

When the patient came back dangerously septic, the EP did not see the patient but was aware the patient had returned terribly ill. The EP went back into the EHR, deleted what he had documented (which, unknown to him, had been auto-faxed to the surgeon), and charted a much more detailed account of the conversation. “Frankly, even at the outset of the case, it looked very self-serving,” Keris offers.

Among other things, the EP documented, “Had a long discussion with the surgeon about the patient’s condition. The surgeon agrees with me that the patient most likely does not have a small bowel obstruction. He agreed that the patient should be discharged home, and agreed to see the patient in a few days.” The suspicious entry coincided exactly with the time the patient was admitted for sepsis.

The patient’s family sued both physicians and the hospital. The complaint included several allegations:

  • The conduct of the physicians delayed the diagnosis and treatment of a small bowel obstruction;
  • By the time the patient returned to the ED, he was septic and had a much worse chance of survival;
  • If the EP and surgeon had admitted the patient to the hospital during the initial ED visit, he would have lived, since at that time the only signs of a small bowel obstruction were diminished bowel sounds and concerns about the “pop” the patient had felt previously.

At deposition, the surgeon was confronted with the ED record, and strongly refuted the EP’s account. The surgeon testified he actually told the EP that while the patient had been seen by the surgeon in the past, his office had discharged him some time ago, in part because of thousands of dollars of unpaid bills. The surgeon further stated he wanted nothing to do with consulting on this particular patient. “There was no way to reconcile their stories. None,” Keris says.

It became apparent the hospital did not know about the content of the auto-faxed note to the surgeon. The hospital only had the altered entry in their chart, not the first entry (because the EP had deleted it and retyped a new entry).

The situation grew even worse for the EP when the plaintiff attorney requested the electronic tracking of the surgeon’s ID badge. It turned out the surgeon was at the hospital making rounds during the patient’s first ED visit, after the phone call. The surgeon never came to the ED to see the patient.

“The surgeon stated that if he intended on seeing the patient on an outpatient basis, he would have seen the patient in the ED while he was in the hospital making rounds,” Keris notes.

Phone records showed the call lasted three minutes. The surgeon contended that if the detailed discussion really happened as the EP claimed, the call would have lasted a lot longer. “The entire trial was basically a credibility contest for the jury,” Keris says.

The jury had to decide who to believe. Either the EP really did engage in a long conversation with the prior surgeon, which would give the EP a viable defense, or the surgeon was the one telling the truth.

Suddenly, the story took a bizarre turn. The EP defendant left the ED practice group, and started working at a different hospital — soon after which he was fired. “He was caught stealing stethoscopes,” Keris says.

There was incriminating evidence, since one of the stolen stethoscopes included an engraving of a nurse’s initials. After hospital security found the stethoscope in his car, the EP pled guilty to theft.

“We did not know if the plaintiff lawyer was aware of that, right up until the eve of trial,” Keris says. It soon became apparent the plaintiff attorney did know all about the theft, and presented it as evidence to the jury. “The jury was permitted to consider the conviction in determining who was more truthful,” Keris says.

Even after this damning evidence came to light, the insurance company adjustor for the EP held off on the decision on whether to settle the claim until the surgeon testified. “It wasn’t until after the surgeon was on the stand and gave his version of events that the case settled,” Keris adds.

Sandra M. Douglas, JD, an attorney in the Richmond, VA, office of Hancock, Daniel & Johnson, has seen these examples of late charting in ED malpractice cases:

  • After a patient returned to an ED the following day in cardiac arrest, an autopsy identified physical injuries that were not documented during the first ED visit. The EP went back in the EHR and charted that he found physical injuries after examining the patient during the first visit.
  • In a case of failure to diagnose meningitis, the EP went back in the EHR after the patient’s subsequent demise. The EP added a detailed physical and neurological examination that conflicted with the family’s recollection. “Cases such as these are virtually indefensible because of the late charting,” Douglas says.

In both cases, plaintiff attorneys found out about the late documentation by requesting the audit trail for the EHR during discovery. Time-stamping showed the notes were added or changed after the ED visit.

Altered ED charts also can be discovered when billing records, diagnostic codes, or another provider’s notes conflict with the falsified record. “To prove the EHR chart was falsified, plaintiff’s attorneys may use forensic experts to track changes in the EHR,” Douglas notes.

Once someone concludes an EP changed the medical record after a bad outcome, the lost credibility is “staggering,” according to Douglas. “Such activity is a smoking gun to a jury, especially when the alteration is self-serving to the EP being sued for malpractice.”

The EP will not be able to explain it away to the jury, resulting in higher verdicts (and in some states, punitive damages) than would be the case otherwise. “In addition, the EP may face employment termination, regulatory enforcement actions, and criminal charges,” Douglas adds.

If there really is a valid reason to correct the EHR, the EP should consult the facility’s policies and procedures regarding EHR corrections. If a lawsuit is anticipated or has been filed, consult with legal counsel before adding to previous documentation. Never erase or delete anything from the original record. Instead, use strikethrough text with the original entry still legible. Add an addendum that identifies the late entry or correction. Document the reason for making the correction (such as that the original documentation was in error).

“The EP should avoid extensive defensive notes, or notes that are critical of other providers,” Douglas suggests.