Late entries are legal game-changers, and they’re devastating for defense
Did a physician make a late entry to the record and knowingly misrepresent the date and time?
"That absolutely will destroy a case, even if it is otherwise defensible," says John Tafuri, MD, FAAEM, regional director of TeamHealth Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland. "In addition, in some states it may be a crime to knowingly falsify medical records," says Tafuri.
Tafuri says that a late entry, generally speaking, tends to make it look like the physician forgot to do something. "When presented to a layperson jury, they might wonder why you waited a day," he says. "Was it because you knew there was a problem?"
Joseph P. McMenamin, MD, JD, FCLM, a Richmond, VA-based healthcare attorney and former practicing emergency physician, says that from the defense perspective, "there is nothing worse than distorting the record. You can take a winnable claim and make it into a loser."
Tafuri has reviewed several claims in which late entries were devastating to the defense. In one case, a patient presented to an emergency department with abdominal pain, and the workup was negative. "The patient was admitted and the next morning, an abdominal aortic aneurysm was detected. The patient died at 7:30 a.m. before the patient could get to surgery," says Tafuri.
The dictation was not typed until 9:31, and included some handwritten notes added by the physician after the patient was known to have died. "Those notes that he documented were to make it look like he had checked for an aneurysm when he saw the patient the day before," says Tafuri. "This destroyed his defense and led to a settlement."
Plaintiff will find out
Altering medical records without others finding out about it is highly unlikely.
"With electronic charting, the time stamp will reveal exactly when information was added to the chart," says Tafuri.
With paper charting, multiple copies of the patient’s chart likely exist. "Doctors sometimes don’t realize that lots of folks now have access to medical records, and in fact, have obligations to copy them," adds McMenamin.
The odds are good that during the discovery process, plaintiff counsel will get both versions of the record. "If they see any discrepancy, they will seek explanations for why that might exist," says McMenamin.
Doctors often are unaware of the scope and breadth of information that can be obtained in the discovery process, he adds. A plaintiff attorney could request that opposing counsel produce medical records and also subpoena them from the plaintiff’s doctor.
"So now they have two sets, and 99% of the time they are indistinguishable. But once in a while, there are differences," says McMenamin. If attorneys discover that the set from the original provider is more complete or different than the one provided by the physician defendant, they usually can use that difference to their advantage, he adds.
Do it properly
"Sometimes, a mistake is made and you have to fix it," says McMenamin. "There is a proper way to do that. If you do it any other way, even innocently, there can be negative repercussions." (See related story, below, on what to do if you learn of a bad outcome before the chart is completed.)
McMenamin advises that if you have to alter the record or add new information, state, "This is a late entry. The information above is incorrect in that [provide reason why information is incorrect]. The correct information is [provide correct information.]"
"You don’t need to embellish, elaborate, or even necessarily explain why there is a mistake," says McMenamin. "If you now have corrected the record, dated and timed it, and signed it, no one can suggest that there was anything at all improper."
If there is a critical issue that you need to document, a late entry might be worthwhile. "If a patient signed out against medical advice and the physician didn’t put in a narrative about what was explained to the patient, the physician might want to edit it after the fact in a very straightforward way," says Tafuri.
Likewise, a late entry might be called for if the physician learns a critical fact that wasn’t known at the time of treatment, such as a positive blood culture. In that case, the physician might make a supplemental entry to chart the result and what he or she is going to do to contact the patient.
"It all depends on the timing. If it is done relatively contemporaneously, it’s less of an issue," says Tafuri. "If it’s done days after the fact, it starts to look suspicious."
• Joseph P. McMenamin, MD, JD, FCLM, Richmond, VA. Phone: (804) 828-5460. Email: firstname.lastname@example.org.
• John Tafuri, MD, FAAEM, Regional Director, TeamHealth Cleveland (OH) Clinic. Phone: (216) 476-7312. Fax: (440) 835-3412. E-mail: email@example.com.