Legal Aspects Of Health Care Administration 11th Edition by George Pozgar

Exercise 7

Facts
On November 10, 1987, Figgie removed a left Achilles tendon mass from Moskovitz. The tumor was found to be a rare form of cancer. A bone scan revealed that the cancer had metastasized.
Moskovitz's care was transferred to Figgie's partner, Makley, an orthopedic surgeon specializing in oncology at University Hospitals. Makley received Figgie's original office chart, which contained seven pages of notes documenting Moskovitz's course of treatment from 1985 through November 1987. Makley thereafter referred Moskovitz to radiation therapy at University Hospitals and sent along a copy of page 7 of Figgie's office notes to the radiation department at University Hospitals.
One month later, Makley's office forwarded the
chart to Figgie's office; a copy was then sent to Moskovitz's psychologist. In January 1988, Makley's secretary requested that Figgie's office return the chart to Makley. At this time, it was discovered that the original chart had mysteriously vanished. The problem arose on October 21, 1988, when Moskovitz filed a complaint for discovery seeking to ascertain information relative to a potential claim for medical malpractice. Moskovitz claimed that she had never refused to have the tumor biopsied, but discrepancies in her medical record led to questions.
In his January 30, 1989, deposition, Makley produced a copy of page 7 of Figgie's office chart. That copy was identical to the copy ultimately recovered by the plaintiff's counsel from the radiation department records at University Hospitals. The copy produced by Makley contained a typewritten entry dated September 21, 1987, which stated: "Mrs. Moskovitz comes in today for her evaluation on the radiographs reviewed with Dr. York. He was not impressed that [the mass on Moskovitz's left leg] was anything other than a benign problem, perhaps a fibroma. We [Figgie and York] will therefore elect to continue to observe."
However, Figgie's photostatic copy revealed that a line had been drawn through the sentence "We will therefore elect to continue to observe." The copy further revealed that beneath the entry, Figgie had interlineated a handwritten notation: "As she does not want excisional Bx [biopsy] we will observe." The September 21, 1987, entry was followed by a typewritten entry dated September 24, 1987, which states: "I [Figgie] reviewed the X-rays with Dr. York. I discussed the clinical findings with him. We [Figgie and York] felt this to be benign, most likely a fibroma. He [York] said that we could observe and I concur." At some point, Figgie also had added to the September 24, 1987, entry a handwritten notation, "see above," referring to the September 21, 1987, handwritten notation that Moskovitz did not want an excisional biopsy.
Figgie, at his deposition on March 2, 1989, produced records, including a copy of page 7 of his office chart. Because his original chart had been lost between December 1987 and January 1988, Figgie had made this copy from the copy of the chart that had been sent to Moskovitz's psychologist. The September 21, 1987, entry in the records produced by Figgie did not contain the statement "We will therefore elect to continue to observe." That sentence had been deleted (whited out) on the original office chart from which the psychiatrist's copy (and, in turn, Figgie's copy) had been made, in a way that left no indication on the copy that the sentence had been removed from the original records.
Figgie maintained that he did not discover the mass on the left Achilles tendon until February 23, 1987, and that Moskovitz continually refused a workup or biopsy.
During discovery, another copy of page 7 of Figgie's office chart, identical to the copy produced by Makley during his deposition, showed that the final sentence in the September 21, 1987, entry had been deleted from Figgie's original office chart sometime between November and mid-December 1987, the alteration presumably occurring while Figgie possessed the original chart.
Eventually, Figgie's entire office chart was reconstructed from copies obtained through discovery. The reconstructed chart contains no indication that a workup or biopsy was recommended by Figgie and refused by Moskovitz at any time prior to August 10, 1987.
In a videotaped deposition before her death, Moskovitz claimed that she never refused to have the tumor biopsied. The panel found in favor of the defendants participating in that proceeding with the exception of Figgie, and the trial court agreed. A panel of arbitrators unanimously found that:
3. The evidence supported a finding that plaintiffs'... decedent had a very good chance of long-term survival if the tumor was found to be malignant at a time when it was less than one centimeter in size. The evidence supported the fact that the tumor had not grown in size as of May 7, 1987. If Dr. Figgie had performed a biopsy prior to this date, the cancer would not have metastasized and the decedent would have recovered.
4. Dr. Figgie's office chart, which is the primary reference material in analyzing a physician's conduct, is filled with contradictions and inconsistencies.
5. Even if Dr. Figgie was first informed of the growth on February 23, 1987, he still fell below acceptable standards of care because he did not conduct further investigation until... X-rays performed in September 1987.
All handwritten entries which appear on or prior to September 24, 1987, indicating that a biopsy was recommended or that the decedent refused further workup were subsequent changes of the records done to justify Figgie's conduct. The sentence "We will therefore elect to continue to observe" on the September 21, 1987 entry was whited out and the handwritten entry "as she does not want excisional biopsy we will observe" was a subsequent alteration of the records. [ Id. at 338]
The court of appeals upheld the finding of liability against Figgie on the wrongful death and survival claims. The court of appeals found that the appellant was not entitled to punitive damages as a matter of law. The court of appeals reversed the judgment of the trial court as to the award of damages and remanded the case for a new trial only on the issue of compensatory damages.
Issue
Is an intentional alteration or destruction of medical records to avoid liability sufficient to show actual malice? Can punitive damages be awarded regardless of whether the act of altering or destroying records directly causes compensable harm?
Holding
The Ohio Supreme Court held that the evidence regarding the physician's alteration of the patient's records supported an award of punitive damages, regardless of whether the alteration caused actual harm.
Reason
The intentional alteration or destruction of medical records to avoid liability for medical negligence is sufficient to show actual malice, and punitive damages may be awarded regardless of whether the act of altering, falsifying, or destroying records directly causes compensable harm. The jury's award of punitive damages was based on Figgie's alteration or destruction of medical records. The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct. The court warned others to refrain from similar conduct through an award of punitive damages.
Figgie's alteration of records exhibited a total disregard for the law and the rights of Moskovitz and her family. Had the copy of page 7 of Figgie's office chart not been recovered from the radiation department records at University Hospitals, the appellant would have been substantially less likely to succeed in this case. The copy of the chart and other records produced by Figgie would have tended to exculpate Figgie for his medical negligence while placing the blame for his failures on Moskovitz.
The intentional alteration or destruction of medical records to avoid liability for medical negligence is sufficient to show actual malice, and punitive damages may be awarded whether or not the act of altering, falsifying, or destroying records directly causes compensable harm.
Is correction fluid helpful when clarifying medical record entries? Explain.