By: Roger Berger
It has happened to most healthcare providers. Upon receipt of a Board investigation letter, a Notice of Healthcare Liability Claim, or even a possibly innocuous record request, a health care provider will take a look at his/her records and realize there are some things missing or that could have been included in the progress notes but were not. What’s a licensee to do?
I have previously written on the record-keeping requirements of the Texas Medical and Dental Boards (The Importance of Written Medical and Dental Records, December 8, 2021); my partner John Langley in our Austin office also wrote about what to do when you receive a notice of a complaint (You’ve Received a Notice Letter of a Complaint from Your Licensing Board – Now What?, June 17, 2019). This article builds on those two and addresses what licensees should and should not do with respect to their records.
First and foremost, as we have previously suggested, licensees should involve counsel immediately upon receipt of a letter from a licensing Board regarding an investigation (even if they are just a treating healthcare provider, not the subject of the investigation, especially when the Board asks for a narrative) or a Notice of Healthcare Liability Claim. The licensee should also consider involvement of counsel for a record request for a patient who requests records be provided to an attorney. Whether contacting an attorney directly or seeking representation through their insurance company, the licensee is best served by involving an attorney with expertise on Board rules and code provisions and experience representing healthcare providers before the Boards and in Court. Will relying on the advice of counsel absolve a licensee of any issues regarding their records? Not necessarily, but it does give the licensee some protection.
One thing a licensee should never do is alter or modify their records. In a malpractice case, altering/modifying records could result in a spoliation instruction to the jury. Depending on the circumstances, the Court can tell the jury the Defendant had a duty to preserve evidence and destroyed or failed to preserve the evidence, and that the jury may consider that the evidence would have been unfavorable to the Defendant. See Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014); Texas Pattern Jury Charges (PJC §1.12 (2016)). In the context of altered or modified medical/dental records, if the original entry was altered or modified (and not preserved), the Court could issue a spoliation instruction, thus greatly increasing the likelihood of an adverse finding.
In the context of Board investigations, the Board can and will hold an alteration or improper modification of a medical or dental record against a licensee. The Dental Board has a catchall provision they often use and under which altered records would fit, allowing them to sanction dentists for “dishonorable conduct”:
“The dishonorable conduct section is intended to protect the public from dangerous, unethical, and illegal conduct of licensees…. Actual injury to a patient need not be established for a licensee to be in violation of this section. Behavior constituting dishonorable conduct includes, but is not limited to:
(11) Unprofessional conduct--engages in conduct that has become established through professional experience as likely to disgrace, degrade, or bring discredit upon the licensee or the dental profession.”
22 Tex. Admin. Code §108.9. The Medical Board has a similar catch-all provision:
“A physician or an applicant for a license to practice medicine commits a prohibited practice if that person:
(5) commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public… or injure the public.”
Texas Occupations Code §164.052(a)(5).
Neither Board provides specific guidance as to what conduct is likely to “disgrace, degrade, or bring discredit” or “deceives or defrauds the public” and is thus unprofessional or dishonorable. Note also that actual harm to a patient is not required in order for the Boards to sanction a licensee under these provisions. I would submit that it allows them to sanction a licensee for improper alteration of medical/dental records.
So, what should a licensee do when he/she receives something indicating a Board or a healthcare liability attorney is investigating and they realize their records are missing information? First, don’t panic, it will not likely make or break the defense. Second, as noted, promptly consult an attorney of your own choosing or one provided by your insurance company. Third, analyze what entry/entries you think need to be expanded upon or “fixed” and think about how you would do so and why you did not do so in the first place. Your attorney may advise you to simply mention it in your narrative to the Board (in a lawsuit, it might be appropriate in an interrogatory answer or deposition testimony). If it is very close in time to the date of the interaction that needs to have better records (e.g., your one and only visit with the patient was on March 1st and you get a letter from the Board on March 8th), it may be permissible to add an addendum to the record. Do so as a last resort and be cognizant of how it will look; also do it the proper way (add an addendum with the date you are adding it, noting which day’s note you are modifying and why you are doing so).
Also keep in mind that most EMRs show when notes were last modified. I have defended one dental licensee who had a number of modified notes, including some on the day of receipt of the Board’s preliminary investigation letter. Upon receipt of the records showing multiple modifications, the investigator requested that the licensee provide all metadata from her progress notes (pleading ignorance on how to do it was no help – the investigator provided instructions from the EMR vendor on how to extract and provide the metadata).
To return to what I hope is my key point: don’t do anything to your records without consulting counsel first.