By Gregory J. Naclerio, Esq. and
Leora F. Ardizzone, Esq.
You might wonder why we would be writing an article about Watergate, and about the Nixon cover up. Watergate teaches us that the cover up is worse than the underlying offense. What does this have to do with the medical profession? We all know that documenting patient encounters is, after the Hippocratic oath, one of the most important precepts of health care. After all without the proper documentation, you will not be able to justify the services billed and be reimbursed by third party payors. Contemporaneous documentation of patient encounters also ensures that the health care professional does not rely on his memory in treating a patient, ensures continuity of care in the practitioner’s absence, helps a malpractice suit, or assists in testifying on a patient’s behalf in other proceedings.
Physicians and hospitals are constantly being bombarded from third-party payors, compliance officers, and their attorneys that they must document all services rendered in order to justify the services being billed. Health care professionals are constantly being reminded of the maxim “If it is not written, It did not happen”. While we cannot stress how important it is to ensure that everything you do in any patient encounter must be documented, it is equally vital that you are aware of the pitfalls of trying to reconstruct a patient encounter after your failure to contemporaneously document what you did. Chiefly we see health care professionals attempting to clean up their documentation after they receive a subpoena; during the course of a medical malpractice suit; or while the health care professional is being investigated, whether by a hospital or governmental agency, such as the Office of Professional Medical Conduct or the FBI.
We have recently had an influx of cases where practitioners have tampered with patients’ medical charts in an attempt to present themselves as physicians who follow the rules and document their patient encounters. However, it is all too easy to fail in such attempts, and many have suffered more than if they had let the records remain unaltered, or confessed to keeping less than perfect records.
Panic is perhaps the greatest motivator for health care professionals who seek to tamper with patient charts. The panic arises when the health care professional considers that if he does not “do something” and “cover up” his mistake, he may go to jail, lose his job or lose his license. As an effort to remind you of the lessons of Watergate, you should be aware of the following:
1. If your records are subpoenaed by a state investigatory agency, any attempt to produce altered or “doctored” records may subject you to prosecution by the local District Attorney’s Office, or the State Attorney General’s Office for the crime of Tampering with Physical Evidence or the crime of Falsifying Business Records.
2. In a federal investigation, altering a patient chart can subject you to prosecution by the United States Attorney General’s Office for the federal crime of making a false statement in connection with the delivery of a health care service, or for Obstruction of Justice.
3. Sending an altered set of your charts to a third party carrier can constitute a separate crime of Mail Fraud.
4. Altering patient charts may subject you to suspension or forfeiture of your license.
By way of example, the following real life cases serve as object lessons of how, in their attempts to cover up their misdeeds, health care professionals succeed in getting themselves into hot water:
1. A surgeon had a patient on Heparin post op. Four days post op the patient died of a hemorrhage. The surgeon, in a panic, thought that if he had reduced the Heparin or discontinued it, the patient would still be alive. Later that night the surgeon opened up the patient’s medical records and squeezed in the words “D/C Heparin” after the first day post op, and signed that note. The obvious forgery coupled with other evidence of failure to discontinue the Heparin was so strong that the physician lost his hospital privileges.
2. A physician got a request from a deceased patient’s family’s attorney for a copy of his chart. The physician, fearing a malpractice case, carefully reviewed the chart and found that a note written on March 31, 1997 appeared to be hastily scribbled and was difficult to read. So, he pulled out a new progress note sheet and rewrote the note using his best penmanship. The chart with the altered note was sent to plaintiff’s counsel. When the case went to trial, plaintiff’s counsel successfully argued that the March 31, 1997 progress note was fraudulent since it was written on a progress note sheet with a copyright date of “1999”. Even though the rewritten note was “identical” to the original note, the physician carrier decided to settle the case because of the fraudulent note.
3. A nurse covering for an 84-year old nursing home patient failed to implement a dose reduction of Coumadin. Fearful of losing her job, she back dated the change in medication from 5 mg to 2 mg and forged the initials of other nurses to show that the Coumadin was administered at the 2 mg rate. The nurse was charged with a federal felony.
4. A physician received a subpoena for medical records of a patient seeking disability benefits. The physician, who had lost his records in the course of a move from his old office, recreates the patient’s records, and in so doing notes certain errors in dating. The physician used white out to correct some entries. The hearing officer found the fraud so obvious that the patient was denied disability benefits.
Remember to document everything, but if you fail to do so, remember, the legacy of Richard Nixon and Watergate and don’t cover up your mistakes.
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Gregory Naclerio is formerly the Director of the Long Island Regional Office of the Deputy Attorney General’s Medicaid Fraud Control Unit, is a Senior Partner with the law firm Ruskin Moscou Faltischek, P.C., P.C. and is Chairman of the firm’s Healthcare Regulatory Department. He can be reached at (516) 663-6633 or gnaclerio@rmfpc.com.
Leora Ardizzone is an associate in the firm’s Health Law and Corporate and Securities Departments.