CONCEALMENT OF MALPRACTICE

In this lawyer’s experience, in every instance where he has represented the family of a patient who died from malpractice, the deceased patient’s medical records were falsified and the death was attributed to a medical problem rather than to an accident.

The reasons for concealing an accidental death are many. Fundamentally, no one wants to admit that he or she accidentally caused a patient to die. A health care provider could be at risk for losing his or her license if the conduct causing death was “grossly negligent.” It’s professionally very embarrassing. An accidental death is “bad for business” - hospital administrators do not want it known that a patient died accidentally in their hospital.

In order to conceal and explain an accidental death, medical records have to omit important information or they have to be falsified, or both.

When a patient’s actual course and treatment in the hospital are concealed or falsified, it becomes much easier to attribute the patient’s death to medical illness. Here is an example… 

Miguel Koval was 51-years old when he had elective wrist surgery at Kaiser Hospital in Redwood City. The surgery involved a bone fusion. After surgery, he was brought from the recovery room to a nursing unit. This was about 7:30 p.m. Because the surgery was painful he received morphine after his surgery. During the nursing shift change, around mid-night, there was a breakdown in the normal routine. Miguel’s evening-shift nurse was supposed to meet with his night-shift nurse to discuss the care that Miguel needed. But the evening-shift nurse left work a little bit early, before his night-shift nurse arrived. When neither of them was present, Miguel, unfortunately, turned on his call light because he needed pain medication. A vocational nurse, working on the “A side” of the nursing unit though he was a patient on the “B-side,” responded and provided him with morphine taken from the “A side” narcotic drug cabinet. She, however, did not chart that she had given him morphine, probably because she was planning to tell his night-shift nurse when she arrived. She forgot. When the night shift nurse arrived, shortly thereafter, she saw the order in Miguel’s chart for morphine and gave him another dose.

About 2:30 a.m., Miguel was found unconscious in his bed. He was given a drug to reverse the effect of the morphine, and he became semi-conscious. However, he had severe neurological deficits after he was aroused, including severe motor weakness, including an inability to speak, move his arms or legs, or push his tongue out beyond his teeth. Within an hour, he lapsed into a coma, and lost control of his blood pressure, symptoms which pointed to an injury in his brain stem.

To conceal how Miguel was injured, his clinical course had to be hidden because knowledge of his clinical course would lead to the inescapable conclusion that morphine was the cause of his brain injury, even without knowing that he had been accidentally overdosed. Concealing his clinical course involved falsifying his nursing record, and not creating any other record of his care, at 2:30 a.m. and after, until he was “found” unconscious.

The Hospital could not deny that Miguel had received morphine. The operation was too painful for a patient not to receive pain medication. So, the best way to “disconnect” Miguel’s brain injury from the morphine was to create a long interval of time between the giving of the morphine and the discovery of his injury, and to observe him in a “normal condition” long after he had received morphine.

So the medical record prepared by his nurse indicated that he was given morphine at 1:20 a.m. and after that she observed him sleeping and breathing normally two or three times, and that when she awakened him at 6:00 am., he was in a normal condition. She then reported that when she returned to see him at 6:30 a.m., he was unconscious.

But there was another problem. The Federal government requires very strict documentation of the use of morphine. All doses of morphine used in the hospital have to be accounted for- including the extra dose of morphine given to Miguel, and it was. That dose was attributed to the care of another patient.

Miguel’s family was finally notified that there was a “problem” about 9:30 a.m., about 7 hours after he was found brain injured. When the family came to the hospital, they were told that “we don’t know what’s wrong, but we’re doing tests to try to find out. We think it may just be his response to morphine and we’re giving him an antidote. We think the antidote is working, but we have to give it time to work.” [If the morphine antidote was going to help him, it would have helped him within minutes of administration, but the family didn’t know this.]

How the hospital benefited from not telling Miguel’s family that he was brain injured was that the family could not demand that Miguel receive treatment that would likely have saved his life. That treatment would have involved taking steps to protect him from the swelling of his brain. An injured brain will swell within the closed space of the skull and the swelling will cause the tissues to compress and constrict the blood vessels in the brain. The lack of blood will cause more tissue damage and more swelling, and eventually, no blood will be able to circulate in the brain and the brain dies. There are ways of treating this problem: steroids can be given to counteract the swelling process and if necessary a part of the skull can be removed to allow the brain to swell outside the skull.

But if Miguel lived, he probably would have been disabled, and caring for him would have been very expensive. Without treatment for brain swelling, he died about 18 hours after his brain was injured because of respiratory failure caused by the morphine.

After his death, the Hospital argued that he died from a stroke. To prove that, the Hospital had a CT scan taken of Miguel’s brain while Miguel was alive. That scan showed brain injury, as well it should. The question was whether that scan showed brain injury that occurred because of respiratory failure resulting from a drug overdose, or whether the injuries shown on the scan were the result of a stroke.

Initially, the death certificate issued by the San Mateo County Coroner supported the conclusion that Miguel died from brain swelling, caused by injury from respiratory failure caused by morphine. When the Hospital received the death certificate, it contacted the Coroner and asked for a “review.” The Coroner then changed the death certificate to say that Miguel died from a stroke. [See the article on Coroners]

By allowing Miguel to die, the Hospital saved about two or three million dollars, the cost of an annuity that would have provided for Miguel’s care if he had lived as a brain damaged person.

It was very unfair of the Hospital not to include the family in its decision to end Miguel’s life [it’s also likely a criminal act.] About 10:30 a.m., when his eldest son came to the hospital, Miguel’s doctor showed the son that his father was semi-conscious by shaking him and speaking loudly to him. His son saw his father open his eyes, just a little. The doctor went to the end of Miguel’s bed and said, “Move your toe.” Nothing happened. The doctor then tapped Miguel’s big toe and said “move your toe.” Miguel moved his toe, but just barely.

What this test showed was that Miguel could hear, he could understand language and he could exert some (though minimal) motor control over his body. Generally, symptoms like his are worse immediately after the injury and will get somewhat better over time. How much better Miguel might have gotten will never be known since his doctors decided not to treat him for brain swelling, and thereby consigned him to die.

This experience and others that I cannot speak about because of confidentiality agreements have taught me that when a patient dies because of a medical mistake in any hospital anywhere, concealment of the cause of the death almost invariably occurs.

DOCTORS KNOW THAT THEY CANNOT TRUST THAT MEDICAL RECORDS

OF NEGLIGENTLY INJURED PATIENTS ARE ACCURATE

If you think that I am making this up, then you should read a report, To Err Is Human, published by the Institute of Medicine, a division of the National Academy of Sciences, in 1999. The Institute’s report is in book form and it addresses the problem of accidental patient death and injury in American hospitals. The purpose of the report was to describe the scope of the problem and to propose solutions to prevent accidental death and injury in hospitals.

In the early 1990's researchers conducted a study to try to determine the incidence of accidental death and injury in American hospitals. This study was needed because there was no centralized collection of data about the existence of the problem or its extent. Each hospital in the United States kept such information within its “behind closed doors” peer review process, and essentially “buried” such mistakes.

To try to estimate the extent of the problem, researchers in New York examined 33,000 medical charts from one hospital. But the problem the researchers had with using patient medical records was that they were uncertain about the accuracy of patient medical records.

To test the reliability of these records, the researchers performed a preliminary study. They examined 4000 hospital records of patients who had died or were injured. [These records were not part of the 33,000 patient records subsequently reviewed.] Physicians who reviewed these 4000 patient records were asked to determine which patients died or were injured because of medical negligence.

After the physicians had made their determination as to these 4,000 records the authors obtained the authoring hospital’s “risk management” files for each of the 4000 patients i.e. these “Risk management” records proved to be “gold standard”- i.e. they were very likely to disclose the true cause of a death or injury.

When the researchers compared the physicians’ analysis of the cause of death using patient medical records against risk management records, they found that physicians correctly identified about 70% of the patients who had died or were injured because of negligence.

In other words, 30% of the records did not disclose enough information for a physician to tell from the record that the patient had been injured or died due to negligence. What would be interesting to know is whether the records which concealed that a mistake had caused death or injury were records of patients who were injured or died in circumstances when there were no witnesses except hospital employees.

Further, if skeptical medical researchers were unable to ascertain from patient medical records that a mistake caused injury 30% of the time, lawyers, judges and juries, who have no knowledge that medical records are frequently falsified, are far more likely to be fooled frequently by false medical records than skeptical medical researchers.

False medical records are one of the principal reasons that make it exceptionally difficult for a plaintiff to prevail in a medical malpractice claim. False medical records are used by doctors and hospitals to shield them from medical malpractice actions. The plaintiff’s medical experts are at quite a disadvantage because they are “forced” to base their opinions about the malpractice on falsified information. Although I have tried repeatedly to convince expert witnesses and physicians to testify in court about falsification of medical records, I have found that physicians are extremely reluctant to accuse their colleagues of falsifying medical records, even though privately, they acknowledge that falsification of medical records is frequent when a patient is accidentally injured.

Frankly, it is a very disheartening situation.

MEDICAL RECORD FRAUD TENDS TO BE WORSE AT KAISER THAN AT OTHER COMMUNITY HOSPITALS FOR STRUCTURAL REASONS

The structure of Kaiser-Permanente results in less protection of the medical record than exists at other types of hospitals.

In non-Kaiser community hospitals, there is an actual division between the hospital and its employees, such as nurses and respiratory therapists-on one hand- and physicians who work at the hospital, on the other hand. In other words in these non-Kaiser hospitals, there is no employer-employee relationship between the hospital and the physicians who work in the hospital. Thus, in non-Kaiser community hospitals, the hospital does not insure physicians (who work at the hospital) for malpractice. It insures only its employees-nurses, respiratory therapists and the like. Physicians obtain their own insurance which insures them for harm that is caused by medical negligence.

Because, in non-Kaiser hospitals, physicians are protected against malpractice by insurance which is completely separate from the insurance which covers the hospital and its employees, when a negligent patient-injury occurs, the insurers are concerned about which person made that mistake. Was the patient injured by a hospital employee or by a physician? The insurance company that insures the hospital does not want to pay for a physician’s mistake. Likewise, the physician’s insurer does not want to pay for the mistake of a hospital employee.

As a result of these adverse interests, the charting of the patient’s course by the non-negligent care giver is likely to more accurately report the patient’s course. In addition, the original patient medical record is usually placed in a locked cabinet in the hospital’s medical record department and it is made available for review only under supervision.

But at Kaiser hospitals there is no real distinction between hospital employees and physicians. The same insurance insures all employees - doctors, nurses, respiratory therapists, etc. Further, at Kaiser, it is the reputation of Kaiser as an institution that is at stake, more so than the reputation of individual physicians. Thus, all Kaiser employees - nurses, doctors and others - jointly have a reason to band together to cover up negligence by any one of them.

Moreover, based on my experience, I know that at Kaiser after a patient is injured from a possible mistake, his or her original medical record is invariably handed over by the Kaiser hospital Medical Records Department to the Kaiser hospital’s Medical-Legal Department. The Medical Records Department does not even keep a copy of the original record so there is no way to prove what records were originally part of the patient’s chart before the chart was provided to the Medical-Legal Department.

One of the purposes of the Medical-Legal Department in each Kaiser hospital is to assist Kaiser lawyers in defending against claims of medical negligence. Giving the patient’s original medical chart to the department in the hospital which assists in Kaiser’s defense against medical negligence claims is an invitation to fraud.

This practice should be stopped because I believe it violates state law which requires that a hospital must protect the integrity of a patient’s medical record.

THE VULNERABILITY OF NURSING RECORDS

The contemporaneous nursing notes of the patient’s condition and care are typically shredded and discarded.

Unless a hospital has introduced electronic record keeping, nurses keep contemporaneous written notes of their care of each of their patients during a nursing shift-these contemporaneous notes being discarded at the end of their shift. For example, if they take a patient’s blood pressure, they will note the values on a piece of paper. Patient notes may be kept on a form provided by the hospital, or in a notebook that the nurse supplies. The information contained in these contemporaneous notes is then transferred by the nurse to a specialized nursing form toward the end of the nurse’s work shift. That form is typically a foldout form composed of three or four letter size sheets, front and back. In other words, it might have six or eight pages, which the nurse fills out using her contemporaneous notes as the source of information. That special nursing form then becomes part of the patient’s chart while the contemporaneous notes are then shredded and discarded.

The shredding and discarding of contemporaneous nursing notes is an invitation to fraud. Imagine what happens if a patient is accidentally injured. Contemporaneous notes are made of the patient’s condition and of diagnostic tests performed by the nurse. These notes, if correctly copied onto the final nursing form, could well disclose information about when and how the patient became injured. But since those notes are destroyed, the only document which is included in the patient’s medical records is the final nursing form, which is completed after the injury. Of course, that form is much more susceptible to falsification than contemporaneous notes. A nurse frequently would not have the time, the opportunity or the motive to develop coherent, false contemporaneous notes of clinical information which she is collecting in real time. On the other hand, a final nursing form is usually prepared near or at the end of nursing shift, or could be prepared even later, after the crisis has passed At that point, the nurse will have had an opportunity to discuss with co-nurses and other involved persons what the “story” will be regarding the patient’s injury. Then she can fill out the final nursing form in accordance with the plan to conceal the adverse event.

Obviously, real time contemporaneous notes should be put in the patient’s chart whenever there is an unexpected patient injury.