Kreisman Law Offices Professional Corporation
In the many years that I have practiced medical malpractice in Cook County and Illinois, my clients have warned me that the pertinant medical records in their case had been falsified, changed, deleted or simply removed from the hospital and medical charts.
In Illinois, the “intentional destruction, mutilation, alteration or concealment of evidence” is called spoliation of evidence. If medical records were to be destroyed or altered, the Illinois Supreme Court can impose a sanction upon any party who unreasonably refuses to comply with any discovery rule or order entered pursuant to the Illinois Supreme Court Rules. The court has the power to stay the proceedings pending compliance; default the case, barring further pleading related to the issue; dismiss a claim or counterclaim related to that issue; exclude testimony related to the issue; to strike any relevant portion of the offending party’s pleadings and enter judgment on the issue; and to enter a default judgment or dismissal against the offending party.
In 1995, the Illinois Supreme Court recognized a separate cause of action for negligent spoliation of evidence. So if your medical records in a medical malpractice case were altered by the medical staff, then you could file a separate lawsuit regarding the altered evidence. And because adequate remedies for the destruction of evidence already exists under Illinois Supreme Court Rule 219, a new tort wasn’t created. Instead, the Supreme Court held that an action for negligent spoliation could be brought under existing negligence law.
To follow the Illinois law, a Massachusetts’s Appellate Court considered whether a medical malpractice statute of repose would apply to bar an action for intentional falsification of medical records in Chace v. Curran 881 N.E.2d 792 (Mass.App. 2008). In Chace, plaintiff’s son, Andrew, suffered birth injury malpractice in September, 1995. Prior to his delivery, Andrew exhibited signs of a prolapsed cord so the defendant, Dr. Shannon, ordered an emergency Cesarean. But upon delivery, Andrew required resuscitation due to the lack of oxygen.
In March, 2001, plaintiffs filed a complaint against Dr. Shannon alleging negligence during the delivery that resulted in Andrew’s permanent severe mental and physical disabilities. During the pretrial discovery of the medical malpractice claim, plaintiffs discovered that the records of Dr. Shannon and another obstetrician were inaccurate and incomplete because they did not include that Andrew was without oxygen for several minutes during resuscitation. However, the medical malpractice claim was dismissed because the statute of limitations had run.
So in June 2004, plaintiffs filed an additional action alleging negligence, fraudulent concealment and intentional misrepresentation and fraud by the doctors. Specifically, plaintiffs alleged that the doctors made false and misleading statements in Andrew’s patient care records while knowing that a potential medical malpractice action could be brought for their substandard care. They were accused of intentionally concealing their lack of due care until after the statute of limitations had run.
The defendant doctors tried to dismiss the negligence claim by arguing that the statute of repose that had applied to the medical negligence claim also applied here. But the court disagreed. The court found that the cause of action for fraud (concealment and intentional misrepresentation of the medical records) was different and that the medical malpractice statutes of repose would not apply because an entirely different set of facts must be proved before they would address the issue of whether the medical care was negligent.
In their motion for dismissal the defendants had claimed that plaintiff’s allegations amounted to nothing more than allegations of inaccurate record keeping within the context of negligent medical treatment. Yet the court in Chace felt that “[a]ccurate recordkeeping and retrieval is necessarily a part of the duty undertaken when a physician is affiliated with a medical group . . . in the course of treating a patient.” Here the defendants misrepresented and failed to disclose material facts for the sole purpose of hiding their errors. Plaintiffs in such circumstances may proceed on alternative theories of liabilities and these alternatives remain consistent with a purpose of the statutes of repose.
It has often been said that the cover-up is worse than the crime. When a doctor alters his or her medical records it violates the trust implicit in their relationship with their patients, and is against the law. When my clients come to me with concerns that their physician might have altered their medical records to cover up potential negligence it is a sad reflection on the current state of patient-doctor relations. Whereas your doctor used to be a trusted professional, now he or she is often regarded with suspicion. Is the patient-doctor relationship so strained these days?
Robert D. Kreisman has been practicing medical malpractice law in Cook County for over 30 years in areas such as Chicago, Hoffman Estates, Oak Park, and Tinley Park.
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