Events in my legal practice are once again reminding me that some doctors will do or say anything to keep from having their mistakes revealed. They will lie to their patients. They will falsify their records. They will deny their mistakes when confronted. They will take advantage of the good will of the public and the high regard in which the public holds doctors. They do a lot of damage.

When clients come to see me and their case looks promising, I usually ask them to get their medical records. With the changes in federal law, it is quicker and cheaper for them to get the records directly from the providers than it is for me to get them. This has the added advantage of not alerting the provider to the fact that there is a lawyer looking at the case.
If we decide to proceed forward with the case, one of the first things that happens after suit is filed is that the parties exchange the medical records of the patient they have in their possession. While this is usually a pretty routine step in the process, sometimes it results in a big surprise. We always compare the records we receive during this exchange with the records we already have in our possession that came from the client. From time to time, the records do not match. Most often the reason is that the provider has included one or two records that were overlooked when they gave the client her records or there are some other documents that are not usually considered part of the records, such as phone messages. This is not a problem. Every once in a while, however, the mismatch is in the body of the records themselves and there is a big difference between what they gave the patient and what they are now claiming are the true records. This is almost always going to be a problem for the provider in the lawsuit. They are going to have some explaining to do.
Back before electronic medical records, it was a lot easier for a dishonest doctor to alter the patient’s medical record, but even then I have seen some pretty amateurish alterations that stuck out like a sore thumb. One time, the doctor put the consent form back in the typewriter and added some new language to make it look like he had discussed an important issue with the patient. Unfortunately for him, when he put it back in the typewriter, he failed to line it up properly and the new language ended up being in the wrong place and was much darker than the original. Other times I have seen doctors add new language to a record where it was obvious what they had done or there was an obvious erasure and replacement. I am sure there have been many occasions, however, when the doctor did a better job and, if I did not have another set of records to compare, I never knew there had been an alteration or addition.
With electronic medical records, there is what is called an audit trail, that shows when anyone accesses the record, who it was and when the record was accessed, and what changes were made. No more middle of the night changes about which no one is ever the wiser.
These record alterations become necessary because, when the provider created the record, she or he did not realize that there was going to be a problem. Once the problem arose, the record needed to be altered to cover up whatever mistake was made. On the other hand, alterations are not necessary when the provider realizes there is a problem before they create the record. If the provider recognizes the problem before creating the record, the record is created with the cover up in mind. There is no way to tell from the record what went wrong or why. This is when I have to do some digging to figure out what the doctor did wrong. It can be challenging but at the same time very rewarding to catch one of these people in the act.
Medical malpractice cases are always hard and one of the reasons is that, despite their ethical obligation to be honest with their patients, doctors almost never want to admit they made a mistake that injured their patient. The colleagues of the doctor who made the mistake are not usually going to be of much help. They may not lie in their portions of the record, but they aren’t going to rat out the other doctor either. The malpractice lawyer is going to have to look at the entire situation and figure out what happened.
Dishonest doctors, or just doctors who are not open about their mistakes, are the reason anyone who thinks they may have been injured by medical malpractice needs to consult a lawyer who knows what he or she is doing. It is just too easy for some of these doctors to pull the wool over the eyes of a well-meaning attorney who does not know what to look for or how to read between the lines of the medical records.
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