My Doctor Modified My Medical Records

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who wanted to sue her doctor for medical malpractice. She got copies of her own medical records because she was concerned about her medical care. But, she is distraught because she thinks the records have been fabricated. She wants to know if her concerns are justified.

Unfortunately, in medical malpractice cases, spoliation of evidence is an all too frequent occurrence.

Traditionally, spoliation of evidence is defined as the destruction of evidence. Or altering evidence to render evidence permanently unavailable to the court and the opposing party.

Estimates are that as many fifty percent of medical malpractice cases involve altered records. Some alterations happen by accident or to insert billing codes. But, as many as ten percent of malpractice cases implicate fraudulently changed records.

Spoliation may be accomplished by altering a medical record or adding to the document at some time after initial entry. However, it may also involve deleting information, fabricating a substitute record, and destroying radiology images, laboratory reports, or biopsy specimens.

Spoliation may involve physical destruction (shredding), alteration (creating a paper copy or erasing electronic records), or concealment of evidence.

Courts have fashioned several remedies for the harm caused by record alteration or destruction.

One remedy is a spoliation inference. Another remedy is sanctioning the responsible party.

Remedial measures are needed to help restore record accuracy, compensate the victim, and punish those altering records.

The spoliation inference permits but does not require the trier of fact to find that the evidence not produced was harmful to the party altering the record.

A presumption of spoliation requires a jury to find that the missing evidence was harmful to the party that altered it.

Traditionally, to apply the inference of spoliation, five elements must be established:

1) destruction;

2) the destroyed information must be relevant to the case;

3) the destruction must be intentional;

4) the evidence must be destroyed when legal proceedings are pending or reasonably foreseeable; and

5) a party or its agent must destroy the records.

In almost every case of medical malpractice, an attorney should anticipate altered medical records. And work with witnesses and electronic record experts to determine if something was altered and when it was changed.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”