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Sidebar - Documented, But Was It Done? · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is statute.
• 0:06
  SPEAKER_00: I'm Tracy Libertori.
• 0:08
  SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
• 0:14
  SPEAKER_00: You're a clinician who wants this work, or an attorney who needs an expert who can hold up.
• 0:19
  SPEAKER_00: You're in the right place.
• 0:20
  SPEAKER_00: Let's get into it.
• 0:26
  SPEAKER_00: My favorite hospitalist who I spoke with today had asked me a number of questions.
• 0:32
  SPEAKER_00: And he gave me a lot of topics for this show.
• 0:35
  SPEAKER_00: So here's another one.
• 0:36
  SPEAKER_00: Um, he had asked me about supervising PAs and he raised something else.
• 0:41
  SPEAKER_00: And it stopped me because he does peer reviews and he said, Tracy, a lot of the time I look at this beautiful note.
• 0:49
  SPEAKER_00: Everything is there, and I'm not sure any of it has actually happened.
• 0:53
  SPEAKER_00: And then he asked me the question I didn't have a good answer for.
• 0:56
  SPEAKER_00: What weight does the chart really hold?
• 0:58
  SPEAKER_00: And we spent a lot of time on this show on the opposite problem: care that was given but never documented.
• 1:04
  SPEAKER_00: And in the chart remembers, we talked about notes written after the fact.
• 1:09
  SPEAKER_00: So today is harder.
• 1:12
  SPEAKER_00: This is a note that was written on time.
• 1:14
  SPEAKER_00: It looks perfect and it describes care that was never actually given.
• 1:18
  SPEAKER_00: So let's start with his question because the answer explains everything else.
• 1:22
  SPEAKER_00: Legally, the chart usually comes into evidence as a business record.
• 1:28
  SPEAKER_00: In Pennsylvania, that's a rule of evidence 803, subsection six.
• 1:33
  SPEAKER_00: The idea behind the rule is simple.
• 1:36
  SPEAKER_00: Records made at the time by people with knowledge as part of their regular job are trustworthy enough to be heard without calling every person who wrote them in.
• 1:47
  SPEAKER_00: But here's what people miss.
• 1:49
  SPEAKER_00: Getting into evidence is not the same as being true.
• 1:53
  SPEAKER_00: The chart is evidence.
• 1:55
  SPEAKER_00: It isn't proof.
• 1:57
  SPEAKER_00: The jury weighs it like anything else, against the testimony and against the rest of the record.
• 2:03
  SPEAKER_00: A Maryland case from 2007 shows this well.
• 2:10
  SPEAKER_00: The whole case turned on one fact.
• 2:12
  SPEAKER_00: When the mother arrived at the hospital before an emergency C-section, she said she'd been waiting for hours.
• 2:18
  SPEAKER_00: The hospital's version was that she arrived just before the surgery.
• 2:22
  SPEAKER_00: The highest court in Maryland held that the entries in the medical records were admissible.
• 2:27
  SPEAKER_00: And the dispute went to the people whose job it was to decide facts.
• 2:31
  SPEAKER_00: The record didn't win automatically.
• 2:34
  SPEAKER_00: Neither did the witness.
• 3:29
  SPEAKER_00: The Harvard Malpractice Insurer published a case where a rehab physiatrist entered identical notes four days in a row.
• 3:37
  SPEAKER_00: While the nurses, physical therapists, and occupational therapists were all documenting the patient was getting weaker, his notes said nothing had changed.
• 3:44
  SPEAKER_00: The patient had a second spinal hematoma and was left partially paralyzed.
• 3:48
  SPEAKER_00: Flow sheets that are too perfect.
• 3:51
  SPEAKER_00: Repositioning every two hours at the exact same minutes every shift for weeks.
• 3:56
  SPEAKER_00: Skin intact on every check the day before a stage four wound is found.
• 4:00
  SPEAKER_00: Care documented when the patient wasn't there.
• 4:04
  SPEAKER_00: Vital signs during the hours the patient was at dialysis or in radiology or already transferred.
• 4:10
  SPEAKER_00: Sometimes care is documented after death.
• 4:13
  SPEAKER_00: I've seen this personally more than I want to admit.
• 4:17
  SPEAKER_00: One person documenting care for an entire unit at the end of a shift in a block of a few minutes.
• 4:23
  SPEAKER_00: And then the outside records.
• 4:26
  SPEAKER_00: Barcode scans on the medication records that show when a drug was actually scanned at the bedside, automated dispensing cabinet logs, time clock, and staffing records to show who was actually in the building, call light logs, wound photos and measurements, other discipline notes, the audit trail, staffing records matter more than people think.
• 4:46
  SPEAKER_00: In December 2023, a federal jury in Pittsburgh convicted two Western Pennsylvania nursing homes in a case built on falsified staffing records.
• 4:55
  SPEAKER_00: And in 2025, they were ordered to pay more than$15 million in restitution.
• 5:01
  SPEAKER_00: If the chart says two aides turned every resident every two hours and the staffing records show one aid on the floor that night, guess what?
• 5:09
  SPEAKER_00: That chart has a problem.
• 5:11
  SPEAKER_00: Now, what does Pennsylvania law say?
• 5:14
  SPEAKER_00: The MCARE Act, section 511, says chart entries have to be made contemporaneously or as soon as practicable.
• 5:22
  SPEAKER_00: Altering a chart is unprofessional conduct.
• 5:24
  SPEAKER_00: Corrections and additions are allowed as long as they clearly marked as later entries with a date and time.
• 5:33
  SPEAKER_00: If a claimant proves an intentional alteration or destruction of records, the court can instruct the jury that it may draw an adverse inference.
• 5:42
  SPEAKER_00: And altering records to wipe out information that would support a malpractice claim is a ground for license suspension.
• 5:50
  SPEAKER_00: One honest note that section is written about altering or destroying records.
• 5:55
  SPEAKER_00: A note that was false from the moment it was written is a slightly different problem.
• 6:01
  SPEAKER_00: How a court treats that in a particular case is a question for the attorney, not the expert.
• 6:07
  SPEAKER_00: And that brings us to your lane.
• 6:09
  SPEAKER_00: If you're the expert, don't write the words fraud or falsified in your report.
• 6:15
  SPEAKER_00: Whether someone lied on purpose is about intent, and intent is a question for the jury.
• 6:22
  SPEAKER_00: What you can do is lay the records side by side and describe what they show.
• 6:27
  SPEAKER_00: The repositioning flow sheet documents turns every two hours in March from the 3rd through the 5th.
• 6:34
  SPEAKER_00: The wound care note on March 5th describes a new stage three injury.
• 6:38
  SPEAKER_00: The staffing record for the night of March 4th shows one aid for 30 residents.
• 6:43
  SPEAKER_00: Those facts are inconsistent.
• 6:45
  SPEAKER_00: Let the inconsistency speak for itself.
• 6:49
  SPEAKER_00: And be fair because this cuts both ways.
• 6:53
  SPEAKER_00: A consistent chart isn't proof of fabrication.
• 6:56
  SPEAKER_00: Routine care gets documented the same every day because it was the same every day.
• 7:03
  SPEAKER_00: Sometimes the scan data and the staffing records back the chart up completely.
• 7:08
  SPEAKER_00: And that's powerful evidence for the facility.
• 7:11
  SPEAKER_00: Your job is to find out which kind of chart you're holding.
• 7:15
  SPEAKER_00: Last thing for the physician doing peer reviews.
• 7:18
  SPEAKER_00: In Pennsylvania, peer reviews proceedings are generally protected under the Peer Review Protection Act.
• 7:23
  SPEAKER_00: But the chart itself isn't.
• 7:26
  SPEAKER_00: The chart goes to whoever asks for it in litigation.
• 7:30
  SPEAKER_00: So the beautiful note he's worried about will eventually be read by someone with the scanned data in the other hand.
• 7:36
  SPEAKER_00: Here's a takeaway.
• 7:46
  SPEAKER_00: That trust is exactly why a false entry does so much damage once it's exposed.
• 7:52
  SPEAKER_00: The chart's weight isn't automatic.
• 7:55
  SPEAKER_00: It's earned by matching everything around it.
• 7:58
  SPEAKER_00: This is educational information, not legal advice.
• 8:01
  SPEAKER_00: Rules on medical records, evidence, and peer review protection vary by jurisdiction.
• 8:07
  SPEAKER_00: So check with your retaining attorney.
• 8:09
  SPEAKER_00: And if you have any ideas of what you might like to hear about on this show, please write to me.
• 8:14
  SPEAKER_00: You can go to the website and submit on our website ideas or topics for future podcast episodes.
• 8:19
  SPEAKER_00: We'd love to hear from you.
• 8:21
  SPEAKER_00: This episode of Statutes of Stephen Scopes.
• 8:24
  SPEAKER_00: If it was useful, follow the show so the next one finds you.
• 8:27
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Kit at NationaleExpertAcademy.com.
• 8:35
  SPEAKER_00: I'm Tracy Libratori.
• 8:37
  SPEAKER_00: I'll see you on the next episode.