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Doctor changes his medical records after being sued.

You requested copies of your medical records so you could take them to your next treating doctor. As you sat down at your kitchen table to review your records, you got the feeling that the doctor changed your records to reflect something more favorable than what really happened. However, you are not entirely sure. What do you do if you suspect that the doctor who caused you harm might have changed or altered your medical records in his chart?

FIRST STEP

The first step is to have an experienced trial attorney review your medical records. Sometimes there are signs and indications in the written chart that might suggest something is just not kosher. If your attorney believes you may have a valid case and he takes on your matter to investigate and evaluate your case, he will obtain copies of your medical records directly from the doctor's office.

A PROBLEM WITH COPIES OF YOUR RECORDS

The only problem with doing that is that the records that will be forwarded to your lawyer will be photocopies. The doctor will never release the original records to anyone and therefore you are stuck with photocopies.

However, there are some instances where photocopies may indicate that something is unusual with the records. For example, if all the handwritten notes are in the same exact handwriting and appear to be all generated at the same time, that might raise a red warning flag to suggest the records were changed.

However, since these are photocopies, it becomes impossible to determine with 100% certainty whether these documents were changed.

GETTING THE ORIGINAL RECORDS

The only time we can obtain and review your original records from the doctor's office is after your lawsuit has been started. We could have an opportunity, if we request, to go to the defense attorney's office and physically sit and go through page by page of the original records in the presence of the doctor's lawyer.

The more common experience is that I will have an opportunity to review the original records when I question the doctor at his deposition, which is also known as a question and answer session given under oath at his attorney's office.

DOCTOR MUST PRODUCE HIS ORIGINAL RECORDS

The doctor is required to bring his original chart to the deposition. An experienced lawyer will review the original chart before beginning questioning. This is done to identify any concerns about the original chart. The original records will show what color ink was used, and whether it was the same pen and possibly whether the notes were all made at the same time.

During the doctor's deposition, I will ask many questions about the doctor's original records and the process by which he takes notes and makes entries in the record. If there are still significant concerns about altering the record, in rare instances we will hire a handwriting expert to evaluate the doctor's original records.

ALTERED RECORDS ARE UNUSUAL

The reason why it is so rare to find and then be able to prove a doctor has altered a patient's records is that a doctor can lose his license to practice medicine if we can successfully show that he has intentionally altered your medical records.

A DOCTOR ADMITS HE ALTERED HIS RECORDS...FASCINATING STORY

Let me share with you an instance where I was questioning a doctor during a deposition and I got him to actually admit that he had altered and changed the patient's medical records. This was remarkable.

I had been asked to take the deposition of the doctor in a medical malpractice case, by another attorney. To prepare for the upcoming deposition, I needed to familiarize myself with the entire file and all the medical records. Reading the medical records, it appeared as if the doctor did absolutely nothing wrong, and that the attorney's theory simply didn't hold any weight.

I was prepared to send the attorney a report indicating that his case was on thin ice and I didn't think he would be able to successfully prove his case.

THE ORIGINAL RECORDS RAISED WARNING SIGNS

On the morning of the doctor's deposition, I asked for and was able to review the doctor's original records. Going through it page by page, I quickly noticed that the original records were entirely different than the records I had reviewed. In my mind I kept thinking that this must be a mistake and that clearly there was something wrong. However, I did not let on what I just found and calmly returned the original office chart to the doctor's attorney so I could begin questioning.

I asked many questions about the doctors original record that he brought with him today.

QUESTIONS:

“This is the patient's original chart?”

“You are the only one who made entries on this chart, correct?”

“You made these entries in the chart at the time the patient was seen, correct?”

“Nobody else made entries in this patient's chart, true?”

“You have no other records for this patient other than what is contained in this original record, correct?”

“Did the patient request copies of her own records after the last visit?”

“Do you have a fax machine in your office?”

“If the patient had requested records, you require that they fill out a permission slip known as an authorization, correct?”

“You don't have any permission slip or authorization from the patient in your chart, correct?”

DOCTOR LOCKS HIMSELF INTO A BOX

Through these questions and others, I was able to lock the doctor into his testimony that these were the only records he had for this patient. After I was done questioning him about the treatment he rendered, I pulled out copies of the records we had in our file and asked the doctor to take a look at each one individually. It turns out that the patient had requested copies of her records only days after her last office visit and the doctor faxed those records to her.

This is how the questioning went:

“Doctor, do you see this faxed copy of the patient's record session?”

“This is your handwriting, correct?”

“Can you tell me where the original record is for this faxed copy of the note that you wrote?”

“Can you tell me why the note that you have in this faxed copy for this particular date is entirely different than the original note you produced earlier for the same exact office visit?”

THE DOCTOR ADMITS IT'S A LIE

The doctor admitted he had no idea where the originals were for the faxed records. He also could not explain why he had two different sets of notes for the same exact office visits. Ultimately, he recognized that he was trapped an admitted that he had discarded his original records after being sued and had rewritten them.

It was fascinating that the records he had rewritten were very favorable to him and his defense. Yet the original faxed records provided to the patient clearly showed that he departed from good and accepted medical care.

When I wrote up my report to the attorney for whom I had done this deposition, I let him know that his marginal case now turned into a fantastic case simply because of the fact that the doctor had altered the patient's records and I was able to prove it.


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer