She wanted to go to another doctor. The doctor faxed to the patient a copy of her records.
One year later, the patient was diagnosed with advanced metastatic cancer. The patient alleged that after the doctor diagnosed her initial cancer and surgically removed the localized cancer, the doctor failed to tell her she needed any follow-up at all.
The patient claimed that the doctor violated the basic standards of good and accepted medical practice by failing to tell her to follow up with an oncologist to evaluate her for chemotherapy and/or radiation therapy.
The patient is diagnosed with a localized cancer which is surgically removed. The patient says the doctor never told her to go to an oncologist for further follow-up. The doctor claimed he most certainly did.
One year later, the patient is diagnosed with advanced cancer that has spread throughout her entire body. Her treating doctors inform her that if she had undergone chemotherapy and radiation therapy, it would have likely contained the cancer and there was a good chance she would have been in remission now.
When the patient started her lawsuit she brought a copy of the faxed records she'd gotten from her doctor to her attorney.
This is pretrial testimony which, in legal terms, is also known as an examination before trial.
In preparation for questioning the surgeon I spent a considerable period of time reviewing the medical records.
The surgeon's records that the attorney had in his file consisted of the faxed copies the surgeon had sent to the patient two days after she had last seen him. Interestingly, there was nothing contained within those records to indicate that the doctor had referred the patient to an oncologist or any other physician for follow-up with either chemotherapy or radiation therapy.
My thinking going into this deposition was that this would turn into a “he said/she said” situation. I believed that if there were no physical documents to confirm the patient's position, it would be extremely difficult to get a jury to believe that what she was saying was true.
As I began going through the doctor's medical records that he brought with him, I began to sense all sorts of warning signals and red flags. Something was definitely wrong here.
The doctor's records that he brought with him, which were all original records, clearly indicated in his own handwriting that he had told the patient to follow up with an oncologist to evaluate whether she needed chemotherapy or radiation therapy.
The doctor's notes clearly indicate the name of the oncologist he wanted the patient to see.
What was remarkable was that these records totally contradicted the records that we had in our file that the patient had obtained only two days after she last saw the surgeon.
I have been in practice now for 25 years helping injured victims recover compensation for their injuries caused by careless doctors and hospitals. I can count on one hand the number of times I have seen a doctor actually alter his medical records. This was one of those times.
I had a suspicion that the doctor's lawyer had no clue about what he had done and what was about to happen.
Here is the strategy that I used that destroyed this doctor's credibility and turned an impossible case to win into a clear-cut winner.
“Doctor, did you bring with you all of your original records for this patient?”
“Yes I did.”
“Are there any other records besides the ones you have brought here today that you have in your office regarding this patient?”
“Did you write these notes at the time that you saw the patient or did you write them at some later date?”
“I always write my notes either while I am with the patient or immediately after the patient has left, but most certainly the same day.”
“Let's mark your folder for identification.”
“Doctor, the notes that you have for this patient, they are in your handwriting, correct?”
“Your nurse or secretary does not make any notes in the progress section of the chart, correct?”
“That is correct.”
“Each of these records and notes were made at the time that you saw the patient, correct?”
“You don't have any other notes for this patient anywhere, is that true?”
“That is true.”
I then proceeded to ask him detailed substantive questions about what was contained in each and every note that he wrote on every single visit. There was a very important reason for doing that. In fact, there were multiple reasons.
In addition, I also wanted to lock him into his testimony about what he claimed he did and to give sworn testimony that this was his plan of treatment at each particular visit.
After I had spent a considerable amount of time questioning the surgeon about each and every note of his patient's medical record that he brought with him to this deposition, that's when I knew the fun would begin...for me, not for him.
I handed the doctor the first sheet of the faxed medical records the patient had originally received two days after leaving his office. It had a cover letter attached to it.
“This fax cover sheet is being sent to the patient and is being sent two days after she last saw you, correct?”
“That is correct.”
"Doctor, do you know why you were sending a fax to the patient two days after she had last seen you?”
“I do not remember.”
“Doctor, I would like you to look at the copy of medical records that was sent to her along with this fax cover sheet. Who sent these records to the patient?”
“Doctor, I would like you to look at the first faxed copy of the first office visit the patient had with you. Is that in your handwriting?”
“Yes it is.”
“Did you personally send these records by fax to the patient?”
“Yes I did.”
“I would like you to look at the first office visit of the faxed copy you had sent to the patient and then I would also like you to take out the records that you brought with you today and open up for the same exact date. Do you see that?”
“Yes I do.”
There is a faxed copy that you sent to the patient two days after she last saw you and there is an original record that you brought with you today. Can you explain to me please how you have two separate office notes for the same exact office visit?”
“No I can't.”
“Where are the original records for the records that you faxed to the patient two days after she last saw you?”
“I don't know.”
“Lets take a look at the second office visit.” I handed him the next faxed copy of the following office visit. We then compared it to the office visit note that he had brought with him that morning.
“No I can't.”
I asked these questions for every single record that we had in our faxed copy. His answer was the same each time.
You should have seen the look on the doctor's face when I confronted him with a faxed copy of his records. It was the deer-in-the-headlights look and his mouth dropped open.
The doctor obviously didn't realize that he had sent to the patient a copy of his original records, and now it was obvious that he had lied. His lawyer clearly realized that the doctor had lied.
What would have been an extremely challenging and difficult case to prove has now changed and turned into one where the defense simply could not go to trial because they could never defend the doctor's actions of altering the patient's medical records and then lying about it.
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