Medical Malpractice and Personal Injury Law Blog

How Altering Existing Medical Records Can Cause Major Problems in a Maryland Medical Malpractice Case

Posted by Briggs Bedigian | Oct 25, 2017 | 0 Comments

Medical records are a critical aspect of the medical practice. Without accurate and detailed notes, there would be no continuity of care between visits or sharing of information between different physicians caring for the same patient. The Centers for Disease Control & Prevention (CDC) says over 86% of physicians have their patient records stored in an electronic medical record (EMR) system. (Also known as electronic health records or EHR) There is pressure to document patient records for many reasons including that in certain circumstances they are a requirement for billing (reimbursement).

Medical Records Potentially Scrutinized

Unfortunately, a physician may not realize that their practices of documentation are insufficient or ambiguous until they face a patient complaint or lawsuit. In these instances, there may be a tendency to better elaborate or clarify an existing medical record, which can have negative consequences. 

Another critical purpose for detailed notes is for defense against potential litigation, such as in medical malpractice claims.​ Medical records are scrutinized in cases of medical malpractice, as they may be the lone documented evidence of a diagnosis, treatment, result, or communication. In a malpractice claim, a later alteration to an existing medical record may severely hurt the provider's ability to defend a claim. In these cases, it is likely that a patient and physician may have differing accounts of the events that occurred.

Practical Example/Scenario

A potential scenario could begin when a medical provider becomes aware that a current patient died as a result of a heart condition and their family is alleging it was the result of medical malpractice. The physician reviews the patient's medical records which showed a solid history supporting proper standards of medical care. Expert colleagues in both internal medicine and cardiology affirm that all diagnostic indicators and observations showed no potential for a heart-related condition. 

The plaintiff attorney analyzes records spanning several years and notices the notes of the most recent visit are considerably more detailed compared to prior entries. Plaintiff counsel seeks expertise from a skilled information technology professional who reveals that an electronic audit of stored metadata showed a recent alteration to the record in question. Earlier, as part of routine testimony, the physician had stated he had made no such changes. His credibility is severely compromised and the case has become indefensible.

Electronic Footprint & Related Maryland Statute

Activity conducted within a system of electronic medical records may be considered as under “continuous surveillance”. The Professional Liability Advocate recently explained that most systems are capable of generating a report indicating the user, date, time etc. These reports are records of how all information is maintained and changed over time. Maryland Statute 4-401 prohibits a provider from intentionally or willfully damaging, destroying, or altering a medical record, report, or information concerning a patient for evidentiary purposes in any hearing or action of a civil or criminal nature. Violators may be subject to a misdemeanor along with a fine of up to $5,000 and/or incarceration for a period of one-year.

About the Author

Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm's litigation practice.  Briggs' legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 

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