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Court Holds Alteration of Medical Record does not Create Inference of Falsification

Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707

We're going to begin exploration of this recent Illinois decision, by referencing one of our favorite movies: The Verdict (1982) starring Paul Newman. In the movie, Newman's character, lawyer Frank Galvin, wins a medical malpractice trial on behalf of Deborah Anne Kaye against St. Catherine Leboure Hospital. During the trial, Galvin elicits testimony from Nurse Kaitlin Costello Price that the patient had eaten just one hour before a surgery during which she aspirated, resulting in her paralyzation and permanent vegetative state. On cross-examination from defense counsel for the Hospital, Nurse Kaye produces a photocopy of the original medical record which proves she had noted the time at which the patient last ate, as well as that the record had been altered by an anesthesiologist, Dr. Robert Towler, to conceal that fact. While the able defense attorney convinces the trial judge to suppress evidence of the altered record—as well as to issue an admonishing instruction to the jury to disregard all Nurse Price's testimony—the jury renders a guilty verdict, and even asks if it can increase the amount awarded to Mrs. Kaye's family.

With the advent of electronic medical records and audit trails, the ability of healthcare providers to deliberately alter medical records with the intention of concealing harmful information—all without being noticed—is limited at best. But what happens when a known alteration of a medical record calls into question the validity of a material fact? Is evidence of the alteration admissible? Does such evidence create an inference of falsification? These issues were addressed in Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707.

In Watson, the Plaintiffs, Marques Watson, Jr. and Denise Leonard proceeded to trial in a medical malpractice lawsuit against the defendants, West Suburban Medical Center and Resurrection Health Care Corporation (collectively, WSMC). Ms. Leonard was diagnosed with clinical chorioamnionitis due to Group B streptococcus (GBS) infection and sepsis, resulting in an emergency C-section delivery of her son, Marques. The child was later diagnosed with meningitis, which resulted in significant brain damage.

At the commencement of the lawsuit, Plaintiffs received copies of Ms. Leonard's medical records from WSMC reflecting that she had tested negative for GBS. Prior to trial, Plaintiffs received the original records, wherein the line for GBS test results was blank. WSMC did not contest that Ms. Leonard had not actually been tested for GBS while a patient there. Plaintiffs sought to introduce evidence of an alteration to the medical records made by Nurse Felicia Hughes-Schmidt (Nurse Hughes).

On cross-examination, Nurse Hughes admitted that she had altered the original medical record, which left a blank space for the GBS test result. She explained that she had intended to change the blank to "unknown" rather than "negative", because GBS testing would not have been performed at 29 weeks. Nurse Hughes further acknowledged that she accidently clicked "negative" instead of "unknown". The trial court prohibited Plaintiffs' counsel from arguing during closing argument that the admitted alteration was a "falsification" intended to cover-up the fact that Ms. Leonard's membranes had ruptured earlier. On appeal, the Watson Court ruled the trial court did not abuse its discretion in barring comment from Plaintiff's counsel as to nurse Hughes' motive in altering the record during closing argument. The Appellate Court noted that Nurse Hughes' testimony—that she had no recollection of the patient yet did recall making a mistake in altering the record—was sufficient to raise a question of her credibility in the minds of the jury.

Key takeaways:

  • Understand the electronic medical records and audit trails used at the institution you are defending where possible.*
  • Discuss known alterations during witness interview to determine the reason for the alteration
  • Determine whether the alteration introduced factual error or simply corrected the record
  • Seek limiting rulings or instructions to preclude an inference of "falsification", fraud, concealment, etc., when the circumstantial evidence does not support such a conclusion.

*For a more comprehensive overview of audit trails and EMR, please see the 5-part series on this blog titled "EMR and E-Discovery," authored by David Levitt.  

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