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C H A P T E R

5

Spoliation: Record Retention, Destruction, and Alteration

Alan C. Hoffman, J.D., F.C.L.M. S. Sandy Sanbar, M.D., Ph.D., J.D., F.C.L.M.

GOLDEN RULES

1. 2. 3. 4. 5. "In God we trust. All others must document." (JCAHO) Thou shalt not tamper with medical records. Practice to deceive and a tangled web thou shalt weave. Errors should be corrected promptly once detected. After a record is made, errors should be corrected or edited only by using the proper methodology. 6. Establish and implement policies for retention and destruction of medical records, including electronic or computerized medical records.

MEDICAL RECORDS

Medical records are legal documents and health care providers should be careful when creating and maintaining them. The medical record consists of more than just a patient's chart in that it can include bills, reports of laboratory tests, sundry procedures, and various radiological and other techniques, as well as old tests and/or results. Spoliation, i.e., alteration of medical records, is becoming a significant problem. Written, typed, or computer-generated words about a patient's medical history, chief complaints, physical examinations, nurses' notes, treatment, discharge instructions, and follow-up encounters frequently determine the outcome of a medical malpractice lawsuit. Some physicians or other health care providers may resort to written entries, even if they were changed, in order to "explain" or otherwise deflect liability for their medical negligence. Malpractice attorneys know that evidence of spoliation of records in medical negligence actions can strengthen the client's case. Consequently, plaintiff attorneys are becoming more sophisticated in reviewing medical charts. They apply the mantra "Assume nothing," and believe that record tampering is far too common to think that it does not happen in a malpractice case. Jurors tend to believe physicians and what they see in black and white. Proof of altered records is a sure way to anger and alienate jurors. 45

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CASE PRESENTATIONS

Case 1: Cut and Paste Entries. Anna Ware, a medical doctor, was hired to see and treat patients at the Bedside Clinic, which was owned by Charleton Hospital. There was a regular referral pattern between Bedside Clinic and Charleton Hospital, but there was no open disclosure that Bedside Clinic was owned by Charleton Hospital, and that Dr. Ware was in fact an employee of Charleton Hospital. Dr. Ware had a custom and practice of writing her notes when seeing a patient and putting those in the patient file. At some point in time, while Bedside Clinic was still owned by Charleton Hospital, Dr. Ware as well as other doctors in Bedside Clinic changed their practice behavior and went to a dictation system. The doctors took notes in the office but in addition dictated after the patient left. When the notes came back, doctors cut and pasted the notes over the original handwritten note. This practice amounted to spoliation of evidence. The Bedside Clinic was owned and controlled by Charleton Hospital, and as such, JCAHO applied. Hospital records cannot be altered, changed, or amended except by drawing a line if there is an error, writing the word "error" next to the error, and signing and dating the changed entry. By pasting over handwritten records, a handwriting expert was unable to view the inks in the original records and the fibers to verify whether or not they were written by different pens at different times, and therefore the records were deemed altered. The appropriate way to supplement the original handwritten entry was to cut and paste the typewritten entry underneath and initial the date on the entry as to when the cut and pasted entry was attached to the record. Case 2: Destruction of Documents. Hospital Systems, Inc. controls a number of hospitals in its system including Cornucopia Hospital. Each hospital was required to have various hospital policies and procedures including departmental policies and procedures for the Department of Radiology, Laboratory Department, and others. One of the departments was known as a Transitional Care Unit or skilled nursing facility within the hospital. The skilled nursing facility had a Medical Director and the policies and procedures set forth criteria as to what doctors could admit to the Unit and what doctors were required to write on patients. The doctors had a general policy and procedure for record retention and destruction. Cornucopia Hospital did not follow its policies and procedures but destroyed thousands of pages of policies and procedures without any destruction log whatsoever. During the same period, Hospitals, Inc. had developed a series of systemwide policies including a systemwide policy and procedure for record retention and destruction, which was very specific and which by its terms covered all of its operating units and subsidiaries. Cornucopia Hospital was a subsidiary hospital completely owned by Hospitals, LLC, which was owned and controlled by Hospitals, Inc. The latter also had other ventures including nursing homes and other community facilities and practices. Cornucopia Hospital failed to follow the systemwide policy of the hospital and failed to follow its own policy,

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albeit a policy that was different with regard to record retention and destruction. Hospital policies may in some situations have a bearing on a physician's care. Because Cornucopia Hospital destroyed prior applicable policies, a defendant physician was not able to turn to the policy in a malpractice case relative to who was responsible for a patient in the Transitional Care Unit at a given point in time, based upon the hospital's policies and procedures.

DISCUSSION OF ISSUES

Errors should be corrected promptly once detected. After a record is made, errors should be corrected or edited only by using the proper methodology. The proper method is for the physician to draw a single line through the incorrect information without obliterating it. Then the correct information is recorded above, below, or beside the original incorrect data, and is initialed and dated. It is important to be able to read what has been edited or changed in the clinic or hospital records. It is inappropriate to delete recorded information with correction fluid. Erasing, blotting out, or adding information at a different time than the original note was made are not appropriate ways to correct a record.

Definition of Spoliation

Spoliation is defined as the "intentional destruction, mutilation, alteration or concealment of evidence." An act of spoliation increases the likelihood that one party gains an unfair advantage in litigation. Spoliation of evidence may be committed by a party to a lawsuit, a party's agent or attorney, or even a nonparty. Spoliation arose in an effort to equalize the playing field in the judicial system as against an individual for not being able to present credible evidence to the fact finder. Spoliation can include medical records, financial records, telephone records, billing records, pharmacy prescriptions, policies, and procedures as well as physical evidence, namely medical records, or mundane physical objects, such as hospital beds or medical equipment. Common types of spoliation include adding to an existing record at some later date, the intentional placement of inaccurate medical information in the records, lack of information regarding the exact time of patient treatment by nurses, the recording of the same or constant vital signs (so-called "perfect vital signs syndrome"), the recording of treatment provided at a date after the patient has been discharged or transferred to another hospital or extended care facility, the omission of significant medical information or "fraudulent concealment," dating a record as if it were written at a previous date, the complete rewriting or retyping of part of the medical record (e.g., discharge summary), and hiding or destroying the medical record.

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The Tort of Negligent Spoliation

A civil cause of action for negligent spoliation of evidence is available in at least four jurisdictions, including Florida, Montana, Illinois, and New Jersey. The elements of this tort are as follows: the existence of a potential civil claim; a legal and contractual duty to preserve evidence relative to that action; destruction of the evidence; significant impairment of the ability to prove the potential civil action; causation between the destruction of evidence and the impairment; and damages. In most states that recognize negligent spoliation, the duty to preserve records arises only when the spoliator voluntarily undertakes to preserve the evidence, the spoliator enters an agreement to preserve, the other party has specifically requested that the evidence be preserved, or that a duty exists by virtue of statute, especially a relationship between the spoliator and the victim. In order to protect and successfully perfect a prima facie case under a negligent spoliation theory, one must create a record from the moment the injury occurred. A simple request for evidence to be preserved is not enough. If one obtains a commitment from a defendant, it must be backed up in writing. The writing must state pursuant to the conversations of such and such date that the other party has agreed to preserve the instrumentality or the evidence. If an agreement cannot be fulfilled, then the alternative is to seek court protection through an order of protection to preserve evidence. If there is likelihood that evidence will be destroyed upon commencement of the lawsuit, an ex parte order of protection may be sought; however, one would have to demonstrate a probability of irreparable harm in order to succeed. Spoliation of evidence may be committed by a party to a lawsuit, a party's agent or attorney, or even a nonparty. Most often, spoliation issues arise in the context of civil cases. However, spoliation of evidence may also arise in the context of a criminal case.

Intentional Spoliation of Evidence

Arizona, Indiana, Kansas, Michigan, and Minnesota have refused to recognize the tort of intentional spoliation of evidence. However, the plaintiff could pursue a claim under the tort of "fraudulent concealment." A tort of intentional spoliation has been recognized in Alaska, California, Kansas, Montana, New Jersey, New Mexico, and Ohio. The elements of the tort of intentional spoliation of evidence include: the existence of pending or probable litigation involving the plaintiff; defendant's knowledge of the pending or probable litigation; intentional destruction or significant alteration of the evidence; intent to disrupt plaintiff's pending or probable lawsuit; destruction of the lawsuit caused by destruction or alteration; and damages.

Spoliation Detection Methods

A number of techniques have been used by forensic chemists, document examiners, ink-dating specialists, fingerprint specialists, computer experts,

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and DNA specialists to determine whether a document has been altered. Proof by such experts and specialists that medical records have been altered will not only increase the value of the case but also attack the general credibility of the witness who may have been involved in the spoliation. The ink-dating specialist may prove that a certain entry in the medical record was made at a different time than the physician, hospital, or nurse claimed at deposition. The ink-dating technique can detect an alteration made with a different pen, determine the age of the document, or determine the age of the particular ink. The specialist can date ink in about 75% of lawsuits to within six months of use with reasonable scientific probability. The methods of dating ink include the identification of a chemical date tag that is found in inks made before 1994, the utilization of chromatography to separate and identify the components of the ink, and comparison with known dated standards of the questioned ink. Infrared image converters or special lasers can detect ink of the same color used at different times. Inks luminesce differently and emit light, which can be photographed to make effective court exhibits. Some reports of test results can be used on thermal paper, e.g., electrocardiograms, echocardiograms, fetal monitor strips, and others. These medical records can be examined using scientific techniques that make legible otherwise disappearing provider notes. Where notes are made directly in the medical record, they may produce an imprint on paper underneath, which is easily detected. Other sophisticated methods utilized by both the plaintiff and defense attorneys include the recovery from the hard drive of computer-generated records and deleted entries with the use of highly sophisticated computer retrieval systems.

Implications of Spoliation

Defense attorneys dislike altered medical records, because they immensely complicate the defense. The statute of limitations may be tolled or extended. The trial may be bifurcated to try the allegations of spoliation separately from the rest of the trial. The value of the lawsuit is increased. The despoiler or wrongdoer is presumed at fault, unless the defense proves otherwise. There is a risk of punitive damages in certain states. The jury may become angry and unforgiving.

Types of Spoliation Remedies

"Spoliation inference" is the oldest and most common remedy, which is available in almost all jurisdictions. If a party to a lawsuit destroys, conceals, or fails to produce evidence under his control, the jury may infer that the evidence would have been unfavorable to that party. It is difficult to predict how a jury instruction on spoliation inference might affect the outcome of a case. The jury is not instructed to infer any specific fact, but only to

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infer that the evidence would have been `"unfavorable" to the party who destroyed it. "Shifting the burden of proof " is employed in a number of courts to create a rebuttable presumption against the spoliator on those issues to which the destroyed evidence was relevant. Other civil sanctions the court may impose upon the spoliator include the exclusion of some of the spoliation's own evidence, monetary fines, and default judgment (where the spoliator is the defendant on the underlying claim) or dismissal of claims (where the spoliator is the plaintiff). Criminal statutes of a number of states prohibit the alteration, concealment, or destruction of evidence for the purpose of preventing availability and inhibiting judicial proceeding. The spoliation of evidence can carry with it a number of sanctions against the offending party or their attorneys.

Record Retention

The health care industry not only keeps medical records, it also keeps business records. Sometimes health and business information is combined. According to Section 1(c) of the Uniform Preservation and Business Act, business records include: books of accounts; vouchers; cancelled checks; payroll; correspondence records of sale; personnel; and equipment and production reports. While federal law does not define hospital business records, the federal adaptation of the Uniform Photographic Copies of Business and Public Records Act 28 U.S.C. 1732 defines business records as "any memorandum, writing, entry, print, representation or combination thereof, or any act, transaction; occurrence or event . . . in the regular course of business. . . ." regardless of whether a particular health care record is called a business record, personnel record, financial record, or some other kind of record, keeping proper business records is crucial to the successful operation of a health care facility. Under the Department of Labor, as an employer, health care providers must keep comprehensive payroll records for all employees. Under the Equal Employment Opportunity Commission, entities subject to the Civil Rights Act must keep personnel, employment, and other records having to do with hiring, promotion, demotion, transfer, layoff, termination, pay, and selection of individuals. The Equal Pay Act requires records to be kept for at least two years dealing with age discrimination. The Health and Administration Act requires records for employee exposure records, medical records, and anyone else who is using employee exposure of medical records for 30 years. The Food and Drug Administration does not specify a length of time for keeping of records of blood transfusions. The Department of Health and Human Services requires retention of many records and is responsible for specifying retention periods, including Medicare contracts and reimbursement records; providers of services must maintain sufficient financial records and statistical data to determine costs payable under Medicare. Many federal and state statutes and regulations provide for a specific retention period. A statute of limitations does not itself discuss how long a hospital or medical entity should retain records.

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It is important to know that while a medical practitioner or provider may be working in a facility such as a hospital, that provider is at the will of the facility or the hospital. Hospitals may fail to follow their own policies and procedures or fail to follow other guidelines with regard to record retention. In doing so, a medical provider is unable to rely on existing policies and procedures that existed at the time relative to certain things that went on in the hospital. When the records, policies, procedures, films, or other items are destroyed, a presumption is raised with regard to an inference that the records, policies, procedures, and other items contain something unfavorable to the party that lost them. While the medical practitioner may not be the one who has lost them, the medical practitioner for all intents and purposes may have been the one who could have relied upon them to exculpate him or her from a situation of malpractice but cannot do so because of the missing items. From a practical standpoint, a medical practitioner will normally not criticize a co-defendant or another medical provider; however, when a plaintiff raises the issue of nursing records, it can be smeared against everyone. It is therefore important that a medical provider who is rendering care and treatment in a facility such as a hospital, long-term care facility, or a similar facility should seek a modification to the contractual agreement whereby the facility agrees to be responsible if it fails to maintain the records, policies, procedures, reports, scans, radiographic studies, and others in accordance with the existing policies and procedures either in the facility at the time, or in accordance with federal, state, or accrediting agencies. Hospital records, especially in the medical-legal area, are among the most important types of evidence in lawsuits. Therefore, various records should be retained for at least a period equal to the statute of limitations even if other laws require a shorter period or there is no retention stated. One of the areas in which spoliation can occur is the saving of body specimens, tissue samples, or radiographs. Most private pathology facilities and hospitals do not have the storage facilities to maintain an inventory of all materials, and many times they are not even considered.

Statutes of Limitations for Preservation of Evidence

Hospital, medical, and dental records should be retained for at least ten years, or as required by law. For example, in Illinois the statute of limitations for causes of action for breach of alleged duty to preserve evidence is five years.

Instruction to the Jury about Spoliation

It is difficult to predict how a jury instruction on spoliation may affect the outcome of a case. The jury is not instructed to infer any specific fact, only that the evidence would have been "unfavorable" to the party that has destroyed the evidence. A number of courts, perhaps in an effort to impose a more effective sanction, implore rebuttal presumption against the spoliator, shifting the burden of proof to the party to whose issues the destroyed evidence was relevant.1

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Survival Strategy

Individuals responsible for health care business records, including hospitals and medical offices or other facilities, must regularly develop and monitor a records retention program in the regular course of business, evaluate the records, document the development of the retention program, and obtain the various and sundry approvals. A health care entity must systematically develop a business records retention program that deals with all types of records and all types of media; creates retention and destruction schedules; obtain approvals for the program; performs day-to-day management of the program; and documents the programs. In setting up a records retention program, the entity that establishes it must address all types of records including reproductions. Reproductions often have the same legal effect as the originals, so destroying only the originals does not accomplish anything. The retention program must also address "information copies" and similar copies. Because all media have the same legal effect as a paper original, one must address all media, including microfilm and computer records. If the records manager can properly destroy an original, the entity does not need to keep copies in any media. If, however, the entity needs to keep a record, the records manager should consider whether good business practice dictates copying the original into an optical storage disk or otherwise preserving information more efficiently. The retention program should provide for the destruction of computer and other media as it does for paper records. If the original paper records are destroyed, then one must have a log as to how and in what course of business the records have been destroyed. It would seem very strange if one set of medical records in a hospital or clinic was destroyed out of sequence as compared to a normal aging, or when hospital records are recorded on an optical disk or microfilm and then destroyed. This could of course give rise to the presumption that there was something in terms of inks, paper, overwrites, or other things contained in the original that would not be preserved and could not be viewed on microfilm or digital copies. It must be remembered that a microfilm or digita1 copy once made will not allow a handwriting expert to analyze inks or look for pressure marks on a piece of paper or writing. The records manager must determine how long to keep the records, based on federal and state statutes and regulations that provide for a specific retention. Once a record retention and destruction program is established, it is imperative that one obtains written approvals for the record retention schedule and procedure from the entity's chief executive officer, chief financial officer, compliance officer, legal counselor, and tax counsel.

Destruction of Records Including Medical Records

Keep a list of destroyed records that includes the patient's name and birthday, the date of the last visit, and the date the records were destroyed. The method of destruction must protect the confidentiality of this information,

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such as shredding or burning. Disposing of records in the trash does not provide adequate protection, and could lead to allegations of breach of confidentiality. The time frame for the destruction of patient medical records begins from the date of discharge or from the date of outpatient/ancillary services rendered or the last date of treatment if there was an agency treatment.

FURTHER READING

Bell DA, et al. An update on spoliation of evidence in Illinois. 85 Ill. B.J. 530 (1997). Claypoole RL; Ramey GQ. Guide to Records Retention in the Code of Federal Regulations (Diane Pub. Co., 2004). Casamassima AC. Comment: Spoliation of evidence and medical malpractice. 14 Pace L. Rev. 235 (1994). Cotton CV. Document retention programs for electronic records: applying a reasonableness standard to the electronic era. 24 Iowa J. Corp. L. 417 (1999). Hancock WA. Guide to Records Retention (Business Laws, Inc., 1993). Medical Records and the Law: An Illinois Guide to Medico-Legal Principles and Release of Information (Illinois Medical Record Association, 1994). Palmer RG. Altered and "lost" medical records. Trial (May 1999). Record Retention Reference (Illinois Hospital and Health Systems Association, 1999). The Sedona Conference. The Sedona Guidelines: Best Practice Guidelines and Commentary for Managing Information and Records in the Electronic Age (Sept. 2004).

REFERENCE

1. Nichols v. State Farm Fire and Casualty Co., 6 P. 3d 300 (Alaska, 2000).

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