Legal: Statute of limitations: Time cap for medical malpractice does not include falsification of records

Dr. Records has a large dermatology practice in the Sunbelt. He is known as an expert skin cancer doctor and does thousands of body exams every year.

Key Points

Over the years, he has become overwhelmed with the increasing number of patients he must see each week. Because of this, his exams have been performed in an ever-faster manner. Occasionally, he does not even do a full body exam.

Four years ago, a patient of his was diagnosed with metastatic melanoma. The patient brought a lawsuit against Dr. Records and contended that Dr. Records missed the "bad mole" because he did not do a full body exam. Ultimately, Dr. Records' patient file is produced in discovery. In his handwritten records, Dr. Records clearly describes his full body examination. With this, he feels reassured that he will not be found culpable, despite his patient's allegations that a full body exam was not performed.

Six months after the statute of limitations against filing a medical malpractice case against Dr. Records has passed, a handwriting expert is able to prove that Dr. Records falsified his records. In fact, he never did do a full exam. He changed his records after the lawsuit was initiated against him.

The patient now files another suit, even though the statute of limitations has passed, once again alleging medical malpractice. However, another claim of fraudulent misrepresentation is now added to the lawsuit.

Dr. Records assumes that since the three-year statute of limitations against filing a medical malpractice case has now passed, the courts will not allow the lawsuit against him to move forward. Is he correct?

Court case

A 2008 Massachusetts case looked at this very issue. In that case, a woman gave birth to a baby in 1995 after exhibiting signs of a prolapsed cord. Upon delivery, the baby required resuscitation due to lack of oxygen. The baby suffered permanent, severe physical and mental disabilities. The records stated that the baby received resuscitation within seconds of delivery.

It was not until 2004 that it was determined that the medical records had concealed the fact that the baby was without oxygen for several minutes before the start of resuscitation.

The plaintiff baby's parents filed a medical malpractice lawsuit, as well as alleging that the obstetrician made false and misleading statements in the patient care record concerning the events surrounding the baby's resuscitation.

They further alleged that the inaccurate record statements were made knowing and believing that a medical malpractice action existed for the substandard care.

Finally, they contended that the physician intentionally concealed this lack of due care so as to let the statute of limitations run out before a case could be filed.

Concealing the truth

The court looked at the medical malpractice case that should have been dismissed because the statute of limitations had passed - in the context of the claim alleging fraud. The court was greatly concerned that the physician was trying to make an "improper end run" around the statute of limitations by the intentional record concealment.

The court looked at a Massachusetts law that states that if a person liable to an action fraudulently conceals the cause of such an action from the knowledge of the person entitled to bring it, then the passing of the statute of limitations will no longer prevent a plaintiff from filing that complaint based on negligence.

The defendant obstetrician contended that allegations of inaccurate record-keeping were nothing more than an issue of negligent medical treatment. The court disagreed and stated that the physician defendant had misrepresented and failed to disclose material facts for the sole purpose of hiding errors. Therefore, the statute of limitations against bringing a medical malpractice case would not preclude the plaintiff from bringing that very same case based on medical malpractice.

'No comfort'

Dr. Records can feel no comfort from the knowledge that the statute of limitations has passed against bringing a medical malpractice case against him. His fraudulent changing of records will allow the case against him to be brought. The statute of limitations will not stop this.

Dr. Goldberg is the director of SkinLaser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.

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