Spoliation of evidence, whether intentional or inadvertent, is considered a serious offence in a personal injury or medical malpractice case. In these types of cases, the medical record is the most important proof and a thorough medical record review helps determine the nature and extent of injury. Altering or destroying the medical record can have serious consequences both for the patient and the physician indulging in the act of changing or destroying the medical records. The important question here is whether an injured plaintiff can recover punitive damages from his/her treating physician who destroyed or changed their medical records.
Let us look at a recent case that involved a 6-year-old girl who had Type 1 diabetes, and died from diabetic ketoacidosis. The medical malpractice issue in this case arose because the pediatric endocrinologist she was referred to failed to diagnose and treat the diabetes. This doctor saw the patient 3 times – October 31, 2009; November 14, 2009; and December 12, 2009. The child’s own pediatrican who referred her to the endocrinologist saw the child in late November 2009, and on January 9, 2010. On January 21, 2010, the child came back home from school complaining of tiredness and that she didn’t feel well. The school nurse had sent a note along with her describing her symptoms. The child vomited that evening and said she had a stomach ache. The next day she was hospitalized and remained there until her death on January 24, 2010. When the child’s lawyers asked the pediatric endocrinologist for the records, the doctor typed up her scribbled notes she had originally made and destroyed the originals for the November and December visits.
Now, the problem was that on the child’s last visit on December 12th, the doctor asked the family to bring back the child on February 13th, and the family had the appointment card showing it. The typed notes claimed that the child was asked to come back in just four weeks (i.e. before she was ultimately hospitalized.) Another issue was that the doctor gave conflicting claims regarding when she typed up the first set of notes. This was a major concern because the typed notes included information not reflected in the handwritten record of that visit.
- The doctor was found negligent in that she did not instruct the child’s family about the symptoms of diabetes such as weight loss, light-headedness, tiredness, excessive thirst and excessive urination, and also by not advising that the child’s family perform home testing to measure the child’s blood sugar and ketones.
- The doctor was also blamed for assuming that the child was developing type 2 diabetes and not even considering whether it could be type 1 diabetes.
The jury concluded that the doctor was negligent, which led to the injury and death of the child. The child’s family was awarded $400,000 in pain and suffering and $100,000 in monetary loss. In addition, the jury also granted $7.5 million in punitive damages. The trial court reduced the punitive damages to $1.2 million and the Appellate Division further reduced it to $500,000. The court’s decision was based on a U.S. Supreme Court explanation that highlighted 3 critical considerations for punitive damage awards:
- The difference between the plaintiff’s “actual and potential harm suffered” and the damages award
- How “reprehensible” the misconduct was
- Awards in other comparable past cases
The important thing to note here is that the decision was arrived at by the very issue of punitive damages for destroying evidence in order to avoid liability. The court said that it was undisputed that the doctor had destroyed her handwritten notes and because of that action of hers, the content of the notes could not be proven. In the court’s words, “Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct.” Moreover, the possibility of professional disciplinary action should not preclude medical professionals from being liable for punitive damages for altering or destroying medical records in an effort to evade medical malpractice liability. The court also rejected the defendant’s argument that there was no damage from the destruction of the records since the plaintiff was able to prevail despite it.
What does the outcome of this case convey? Note taking is very important, and that must be properly done. Ideally, notes should be made in the patient’s file when the exam is done, instead of at a later date because by then memory may have failed and scribbled notes are more difficult to comprehend. This pediatric endocrinologist made the mistake of waiting until the plaintiff’s lawyer called to type her notes into the patient’s record and then destroying the original handwritten notes. This is what made the jury suspect the content of the original notes, which could not be verified. Another grave mistake she made was failing to consider the possibility of type 1 diabetes and educating the parents about the risks of diabetes and what symptoms to look out for. Since the original notes were destroyed, it was impossible to verify what actually happened during those appointments. A valuable lesson to learn is not to discard original handwritten notes, and be constantly aware of the medical malpractice risk.
A medical chart review company reviewing medical records for medical malpractice lawyers would know the difficulty incomprehensible notes can create in arriving at a clear understanding of the injury or illness. This case clearly highlights the need to properly maintain and preserve medical records. Punitive damages are very rarely awarded in medical malpractice cases. It is expected that this case will lead to increased attempts to have juries consider punitive damages in claims alleging that medical records were altered or inappropriately lost.
Disclaimer: This blog contains general information about the legal issues discussed. This material is purely for informational purposes and may not reflect the most current legal developments. This content should not be taken as legal advice. For professional advice on legal issues, consult a licensed attorney.
