A frequent discussion we have with our clients in medical malpractice cases is whether a hospital’s or doctor’s records have been altered or rewritten. We and our clients often doubt the authenticity of the records. There have been occasions where the records our office obtains from a hospital or physician differ from the records our client has obtained directly from the provider. When the records are different, it is easier to establish that the records have been changed. In Lofton v. Grieco, a hospital was ordered to produce an original record of admission for a non-destructive examination, inspection and photographing by plaintiff’s forensic handwriting expert.
According to the decision by Justice Randy Sue Marber of Nassau County Supreme Court in Lofton v. Grieco, a wrongful death/medical malpractice case, the plaintiff’s decedent was admitted as a patient at Glen Cove Hospital after going to its emergency room. The plaintiffs contend that the decedent’s condition required immediate surgery. However, a doctor at the hospital who is also being sued contends that the decedent was informed of the need for surgery but refused it. This contention is documented in the progress section of the hospital record. The doctor also contends that the decedent later changed his mind and agreed to the surgery, but he went into cardiac arrest and died before the surgery could be performed.
However, the plaintiffs allege that the note regarding the refusal to have surgery in the hospital record was not written contemporaneously with the entire note and desire to have a forensic handwriting expert examine the original record to determine if all the notes in the hospital record were made at the same time. The plaintiffs would obviously like to argue that the doctor wrote the note in the hospital to cover-up the fact that the doctor and hospital delayed in performing the surgery and that the delay led to the decedent’s death.
Judge Marber held that the Plaintiffs’ counsel articulated a reasonable basis to obtain the discovery requested. The judge, correctly in my opinion (for whatever that’s worth) found that a non-destructive forensic examination of the hospital record to determine if the entry in question was made simultaneously with the rest of the notes is not unreasonable, will not cause an undue burden on the defendants and is not intended to harass or annoy the defendants.
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