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May 7, 2001
Discovery Of Altered Record Leads To $10.2M PI Settlement
By Jason M. Scally
A Boston attorney's search for original ambulance records uncovered falsified information which led to a recent $10.2 million personal injury settlement.
An apparent series of standard protocol violations by ambulance attendants transporting an infant not mentioned in the medical records initially produced during discovery deprived the infant of oxygen for 40 minutes, according to Marc L. Breakstone, counsel for the infant's parents.
As a result, the infant was rendered a spastic quadriplegic after the paramedics delayed treatment for febrile seizures.
Breakstone said he discovered the paramedics' delay by assuming the original ambulance records were withheld, and continuing to dig past the initially produced records. This uncovered a series of lies and coverups by the paramedics, Breakstone asserted, that other attorneys consulted by the infant's parents had overlooked.
The Boston attorney suggested that many plaintiffs' attorneys mistakenly take "as gospel what's given to them" in discovery.
He also pointed out that numerous attorneys perhaps are not aware that hospitals by statute are only obligated to produce requested medical records created by them. They are not obliged to produce ambulance or hospital transfer records in their possession.
Breakstone said he obtained the settlement "in a case that nobody wanted."
The key to the settlement was the crucial information eventually uncovered in discovery, as well as a sophisticated digital presentation of evidence at the mediation, Breakstone contended.
Click here for the verdicts and settlements report for this case.
Leonard A. Simon, a Boston med-mal specialist, agreed that a patient's records often include information not disclosed by the hospital on first request.
"Outside records, outside radiology reports, authorizations or sometimes consent forms are not forwarded," observed Simon, "and the back of a page may have some printing on it that might not be provided. It's critical for an attorney to know all that is there."
Simon also warned that attorneys should be on the lookout for records that are prepared later, noting that additions to records or records not timely produced are "red flags" for a possible cover-up.
However, James S. Hamrock Jr. of Cambridge, a med-mal defense attorney, asserted that just because records were created after the fact is not fatal to a defendant.
Breakstone also said he routinely seeks out information beyond what records purport to indicate.
"I assume there are record changes," he remarked. "I pursue them until I am satisfied beyond a reasonable doubt that there are no changes."
But Hamrock countered: "I don't think [changes] happen a lot." But he acknowledged that "if medical records were altered after an adverse event, it makes [the case] very hard to defend."
Breakstone cautioned that one of the biggest mistakes some attorneys make is in not relying on the original documents.
"A photocopy is all black and white, while originals have color," he explained, indicating that important clues can be missed. "Color reveals information that black and white cannot. Color tells you if different pens were used."
Simon agreed.
"Sometimes there's a flavor that you can only get from reading the original record," Simon noted.
Breakstone recommended using one of two methods that help even a non-handwriting expert detect glaring discrepancies in a document's writing:
"The use of handwriting can be an effective means of establishing a lie," noted the personal injury attorney.
The attorney for the defendant requested anonymity and declined comment.
In the underlying case, a previously healthy 10-month old girl developed febrile seizures resulting from a high fever.
Her parents called 911, and the dispatcher sent two police officers and an ambulance to the scene.
The police officers arrived shortly after the dispatch, but the ambulance crew did not get to the infant until 10 minutes later, according to Breakstone, apparently refusing directions from the police officers who had been in radio contact with the ambulance driver.
When the ambulance arrived, the paramedics, Breakstone said, nonchalantly entered the home and asked the parents about their medical insurance and the hospital to which they should transport the infant.
During this exchange, the child was continuously suffering from continuous clonic-tonic seizures and began to appear blue around the lips due to oxygen deprivation, Breakstone said.
After finally determining that the child was hypoxic with a blood saturation of 78 percent, the paramedics then placed the child in the ambulance for transport to the hospital.
While en route, the medical control officer at the hospital ordered the paramedics to administer Valium to the infant in order to reestablish proper breathing, but the paramedics apparently realized that they did not have the key to the narcotics cabinet in the ambulance.
As a result, a second ambulance had to be dispatched to intercept the original paramedics in order to drop off the key, Breakstone said.
This delay added approximately 10 minutes to the administration of Valium, ultimately contributing to the child being without oxygen for approximately 40 minutes by the time they arrived at the hospital.
The head paramedic prepared an ambulance trip sheet which was filled out in triplicate one copy left with the hospital and the other two brought back to the station, according to Breakstone.
Meanwhile, the child was eventually transferred to a pediatric care unit where she remained a spastic quadriplegic fed by a gastrostomy tube.
The child, now five years old, apparently will never walk or talk, and has only a limited ability to eat by mouth essentially requiring assistance for every aspect of her life, Breakstone indicated.
The infant's parents sued the ambulance company for negligence, since individual paramedics are immune by statute.
Breakstone asserted that "the sequence of events made this an indefensible case."
But not all the pieces of the puzzle were readily apparent.
He observed that other lawyers had assessed the case and not noticed anything extraordinary. However, he said he became suspicious after examining the ambulance trip sheet.
He noted that the sheet had been written in two different pens, one thicker than the other, suggesting that the report had been written at two different times.
Breakstone, a veteran of reviewing medical records, asked the vice president of the hospital to keep the hospital's copy of the ambulance report "in the vault."
After receiving a copy of the report from the defendant, it became apparent that changes had been made because the paramedic had recorded vital signs and other information that he could not have known -- information not recorded on the original copy.
This highlighted the paramedic's alteration of the medical records and greatly strengthened the plaintiffs' case.
Boosting the plaintiffs' success at mediation was a digital "slide-show" of the evidence, according to Breakstone.
"I've never done it before, and I've never heard of it being done at a mediation or an arbitration," noted Breakstone.
Simon observed that "Massachusetts is probably a little behind the rest of the country in using those tools, since some of the judges are not receptive to innovative techniques. But they'll be used more and more as people become more comfortable with it."
By scanning the documents into his computer with a high resolution scanner, then adding other relevant information pertaining to the documents such as deposition statements and digitized video testimony of experts Breakstone said he was able to produce a "story board with substance."
The plaintiffs' attorney presented the hour-long demonstration at the mediation as a way to suggest forcefully what a jury would observe at trial.
By first showing the original medical record, then adding the doctored record next to the original with a click of a mouse, Breakstone said he could seamlessly reveal the inconsistencies and falsifications in the records.
A third click of the mouse highlighted the alterations in bright red colors, he recalled.
A fourth click of the mouse brought up the typed deposition testimony of the paramedic in large print beneath the red-highlighted document, dramatically demonstrating his inconsistent testimony.
Although Breakstone had to enlist the help of an animation company for the high-tech presentation, contributing to its $20,000 price-tag, the plaintiffs' attorney noted that similar presentations could be made with a lot less money.
"Economies of scale would prevent that from being done in anything but a mid- six-figure case, but, in a smaller case, you could do something like a Powerpoint presentation and slide-show on your computer," Breakstone said.
And Simon added that the cost of such digital presentations will eventually go down "as they become more common in use and there are additional vendors."
Even though Breakstone acknowledged that technology has "opened up many opportunities for creative presentation and persuasion that were unavailable" until recently, he said that only having a flashy presentation without substance would be akin to a movie with great special effects but no story.
"Essentially we still are storytellers," he said. "Technology cannot substitute for the power of storytelling and persuasion, but it can certainly enhance [it]." |