Two days after the patient last saw her surgeon, she asked for a copy of her medical records.

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.

Now imagine this scenario:

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.

During the course of her lawsuit I was asked to question the doctor she was suing during a question and answer session, given under oath, which is more commonly known as a deposition.

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.

On the morning that I was to question the doctor, I asked the defense attorney to see the doctor's records.

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.

Without giving away what I had just learned and with a stone-cold blank expression, I handed the records back to the defense attorney and began questioning the doctor.

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?”

“No, these are my only records for 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?”

“Yes, they are all in my handwriting.”

“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.”

What I have done with this series of questions is to get the doctor to acknowledge that

  1. These are the only records he has for this patient,
  2. That he is the only one who made entries in the chart,
  3. That he makes these notes at the time that he sees the patient and not days later,
  4. That there are no other records anywhere except the ones that he brought to the office for this question-and-answer deposition.

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.

I wanted to know what his line of thinking was and what his rationale was for his observations, and his treatment plan.

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.

“Doctor, I would like you to take a look at this fax cover sheet. This is in your handwriting, correct?”


“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?”

“I did. Looking at this it appears that I sent the patient copies of her medical records.”

“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.”

“Do you see that there are two separate notes for the same exact office visit?

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.

“Looking at these two medical records, the original you brought with you today and the faxed copy you sent to the patient, can you explain to me why these two records are entirely different for the same exact office visit?”

“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.

To learn even more about this topic, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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Belle Langley 02/27/2014 08:55 AM
HA! I have been a RN in hospital for 22 years. Before computerized medical records became the norm, and we were still handwriting patient notes, I called the physician from the ICU regarding my patient at approximately 1130 pm. The patient was deteriorating. The patient had made it known that should his heart stop, he wanted to be resusitated. I was told by the physician "Don't call me again until the patient is dead". I informed the physician that I was writing this as a physician order. In the morning, the physician came into the ICU, opened the chart, ripped my doctor's order out of the chart, like it never happened. Writing lies in a patient's permanent medical record has been going on for a long time and these physicians do this because they lack integrity, perhaps they are just derelicts that should never have been physicians. Another case: I received a transfer into my surgical ICU from another hospital. Patient was said to have arterial occlusion of the arm and needed immediate surgery. I immediately checked for pulses in the arm and there were none. Resident shows up and touches his arm briefly and says "He has a pulse, he doesn't need surgery tonight" I replied. "He does not have a pulse. I checked, she checked and he checked. We used the doppler and there is no pulse. If this patient does not go to surgery tonight, I am calling the Chief of Surgery." The patient was immediately sent to the OR. I reported what I witnessed, but nothing was done until the end of the resident's rotation, when he was ejected from the residency program. They certainly were not taking my word, a 22 year RN, but when other incidents occurred, they could not deny the lack of integrity.
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Theresa 12/19/2014 06:57 PM
I recently visited an e.r. after calling my Dr's office and being directed since all that was going on to get to the er asap. The bed was raised at one point, after the exam I was told to. get dressed. I stepped forever and fell due to him forgetting to lower the bed back down. I was crying and in horrific pain during his exam. So I feel it wasn't my fault I feel. I tools the nurse to have him come back in. I told him they needed to make sure the bed was lowered so no one else gets hurt. He asked me who lowered it. I told him my husband did when he walked in finding me climbing up off the floor. He didn't apologize and was acting uncaring so I asked for his supervisor. He came in hard me then loudly said they weren't giving me any narcotic. I was so appalled! I called the next morning got in to see my dr. She went over what the Dr's noted. There were many, many lies and putting that I came for pain script. I turns forever his offer for a script for pain meds. I had a witness and also after his attitude and me asking for his supervisor I recorded the rest. Because I complained, trying to inform them to protect another patient, He retaliated in anger and falsified things in my records that will cause me to be treated as a drug seeker in the future . I'm very upset. No one should abuse their job's power to cause harm to anyone. In this case I am planning on speaking to an attorney. Not sure what kind to contact
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