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January 23, 2018

Alteration of a Medical Record Carries Serious Penalties

On January 17, 2018, a New York appellate court confirmed that punitive damages may be awarded when a physician alters a medical record. In Gomez v. Cabatic, 2018 Slip. Op. 00278 (2d. Dept.), the court allowed punitive damages against an endocrinologist who failed to properly diagnose and treat a child with type 1 diabetes, causing the child's death from diabetes complications. The critical issue involved a discrepancy as to when the child was supposed to come back for follow up blood testing. The jury found that had the testing been done in a timely manner, it would have shown her elevated blood sugar levels and prevented her death.

According to the evidence presented at trial, the doctor's "alteration" of the medical records occurred when the doctor received a request from an attorney to send her medical records. The doctor prepared typewritten copies of her "scribbled" office notes and discarded the original note from the last, most important visit of the patient's three visits. The typed notes indicated the patient was instructed to return in four weeks for testing; however, at the time of the visit, the patient was given an appointment card to return in eight weeks. The plaintiff argued that the doctor intentionally discarded her handwritten notes to hide the consequences of her inadequate care and avoid a malpractice claim.

At the trial, a jury found that the doctor was negligent and liable for $650,000 in damages, but also awarded $7.5 million in punitive damages for the doctor's intentional destruction of her notes. The trial court reduced the punitive damages award to $1.2 million and the doctor appealed. The appellate court held that if a healthcare provider destroys or modifies medical records in order to dodge potential liability, the plaintiff may recover punitive damages. The court reasoned that allowing an award of punitive damages for a medical professional's alteration or destruction of medical records to evade potential medical malpractice liability will deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and publicly condemn such conduct. The appellate court, however ruled that the jury's punitive damages award of $7.5 million was excessive, and ordered a new trial unless the plaintiff agreed to reduce the award to $500,000.

This case conveys a frightening message to providers of the potential consequences of altering an original medical record. By law, punitive damages cannot be reimbursed by an insurance company, so any award must be paid out of the provider's own personal assets. In addition, providers should be aware that intentional alteration or destruction of a medical record may also result in criminal penalties for falsification of business records, as well as possible disciplinary action for professional misconduct.

From time to time, it may be necessary to correct a mistake or enter more accurate information. All such amendments, corrections or additions must be accomplished in an appropriate manner, leaving the original entry intact. Changes to a medical record should be handled on a case-by-case basis to ensure the integrity of the patient's chart and avoid the appearance of misconduct. Organizations should have clearly defined guidelines regarding how and when changes may be made to the medical record to protect against serious consequences.

Should you have questions regarding the information presented in this alert, please contact Frances A. Ciardullo at, Susan A. Benz, Co-Chair of the firm's Health Care & Human Services practice area, at, or Melissa M. Zambri, Co-Chair of the firm's Health Care & Human Services practice area, at


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