22 March 2011
James Bell: Clinical negligence - Fabricating Medical Records
A fair percentage of clients ask me at the outset of proceedings if their medical records will be altered by their doctor /hospital once legal proceedings have been notified to them.
The answer is that this can happen but it is quite rare. If the records are altered deliberately to assist in a civil claim then the doctor or nurse is committing a criminal offence - attempting to pervert the course of justice. They are also in breach of their professional code and could face proceedings from the GMC (General Medical Council) or the NMC (Nursing and Midwifery Council). This is the ultimate sanction and explains why doctors or nurses will rarely put their career on the line to defend a legal claim. However, In one case last year I was able to show that a doctor had fabricated written records and he was struck off by the GMC.
In terms of proving that records have been altered the Claimant lawyers have a number of weapons in our armoury. We have a few favoured forensic document examiners nearby to Chancery lane who are able to advise within a few weeks as to whether records have been tampered with.
Fans of forensic police programmes such as CSI will be familiar with ESDA (Electrostatic Document Apparatus) tests which can establish impressions on pages underneath a piece of paper.Ink analysis may also be very useful in finding out if all the ink on the page is actually from the same pen and therefore written at the same time.The main method of ink analysis is micro-spectrophotometry. This involves scanning the ink with ultraviolet or infrared light to record its spectrum, that is, the wavelengths of light it absorbs.This is a way of discovering the "true colour" of the ink.
Therefore if a doctor or nurse returns to the records after the index event and seeks to add comments to the records to strengthen the Defendant's case, unless the same pen is used the true colour of the ink can be identified and the difference in inks will be damning evidence. In terms of computer records, yes, these can be altered but all systems now in use should be accredited to an NHS standard which means that any alteration will leave an "audit trail.". Records can be altered but at the risk of exposing the doctor to police action/ GMC proceedings. Altering of computer records has to be proved by expensive forensic experts but can be done.
In the Harold Shipman inquiry, police established that Shipman would, in most cases, alter these medical notes directly after killing the patient, to ensure that his account matched the historical records. What Shipman had failed to grasp was that each alteration of the records would be time stamped by the computer, enabling police to ascertain exactly which records had been altered.
So the answer is yes records can be fabricated but we believe that we are able to spot cases where this occurs and take the appropriate investigative action. If we are able to prove fabriaction the Defendant insurers will want to quickly settle the claim before the case reaches trial.
James Bell is a Principal Lawyer in the Slater and Gordon clinical negligence team. If you or a member of your family have a clinical negligence enquiry please call our expert clinical negligence solicitors on 0800 916 9049, fill in our short online claim form or email email@example.com and one of our specialist clinical negligence team will be in touch.