A 45-year-old woman went to the defendant hospital in Alabama for a diagnostic workup. Later that morning, she underwent successful triple cardiac bypass surgery. That evening, while the patient was not on a ventilator and less than 30 minutes after being given an overdose of propofol, she experienced cardiac arrest and was pronounced dead 18 minutes later.
The plaintiff claimed that the nurse who was caring for the decedent made several errors in the administration of propofol. The plaintiff also claimed that the nurse made numerous changes to the record regarding the decedent's vital signs and the ventilator settings. Lastly, the plaintiff claimed that data from the computer memory from the pump used to administer the medication had either been discarded or destroyed.
The decedent's husband had obtained his wife's medical records immediately after her death, and many entries differed from those in the records provided to the plaintiff's attorneys after suit was filed.
According to a published account, a $15 million verdict was returned.
Never, never, ever change a record!
One of the larger plaintiff's verdicts I have recently seen in the literature involves a case of record alteration. As we learned in training, mistakes should be lined out with the correct information added and the date of the alteration indicated. With electronic medical records, the changes are noted and dated, even if the clinician doesn't add in the change date. The computer documents the change without further entry effort.
In this case, it appears that a nurse changed vital signs and ventilator settings. The only reasonable assumption is that it was done to cover up data that would otherwise have been incriminating. Then, to add insult to injury, the propofol pump records were either destroyed or discarded; how convenient. I can only imagine the jurors' thoughts as they heard this.
In addition, there were many other changes to the records. So how was this discovered? The records provided to the plaintiff's husband, probably obtained soon after the incident, differed from those obtained by the plaintiff's attorneys at a later date. I can only guess that no one documented that copies of the record were requested and provided to the husband early on, as would have been good medical record practice.
I have seen just such behavior in my own legal practice. What surprises me here is that the case ever went to trial. Maybe the hoped-for verdict was greater than the available policy limits for settlement, and there was no alternative. In every case that I have seen involving record alteration, a settlement was reached. A smart defense attorney knows that he will have little to offer in defense of this egregious behavior, that a jury will have trouble believing anything the defendants say at trial, and that there is a significant chance for a large and punishing plaintiff's verdict.
We will never know if there was real negligence in this case. When considering record alteration as a way to prevent a malpractice loss, remember that once that alteration comes to light—and it often does—facts mean little. —JP
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.