Joseph C. Avakoff, M.D., J.D.

Medical Legal Matters

Actual Case History

Medical Records Case

A 27 year old female underwent a bilateral augmentation mammaplasty using rather large (450 cc) saline implants.

Following the surgery, she had several complaints regarding the operation. In particular, she complained that excessively large breast implants had been implanted and that, partly because of the excessively large implants, she had developed a "double bubble" on the inferior aspect of each breast. This is a condition wherein which you have the patient's own breast lying on top of a separate noticable mound of skin and implant. The patient eventually had the implants removed by a different plastic surgeon. She then sued the original plastic surgeon for medical malpractice.

The patient's attorney asked me to review the medical records of the case, and the deposition of the patient (the only deposition taken so far in the case).

The treating doctor's records were in order, with a series of entries and handouts, signed by the patient indicating receipt, explaining details about the operation (bilateral augmentation mammoplasty) and most of the complications which could occur.

As I reviewed the records, I noticed that a very thorough informed consent had been given. There was nothing in the records indicating that the presence of a "double bubble" could occur, but it is my opinion that such can occur in cases wherein which it is not anticipated. Thus, regarding the informed consent issue, I felt there was no departure from the standard of care.

The records contained several entries regarding the patient's desire to be really large, and to have implants at least as large as one of her friends' (450 cc) who had the surgery previously.

The deposition of the patient was most informative. It seemed that she apparently had a case of amnesia. She didn't recall signing the numerous documents which were presented to her during the deposition. In particular, she didn't even remember signing the consent for photography, but admitted the photos shown to her were, in fact, of her. She didn't remember receiving anything like an informed consent, and didn't remember receiving a multipage (12 including the signature page) handout regarding the augmentation mammoplasty. On looking at the handout during the deposition, she indicated she would have really liked to have received such information prior to the surgery.

I continued to go through the patient's deposition, feeling that the plastic surgeon had conformed to the applicable standards of care. The deposition then referred to a page in the patient's chart wherein which there was a drawing of the outline of a female body. Notations were present on it, and there was a handwritten note specifically stating how the patient really wanted to have such large (450 cc) implants. The patient was questioned about the handwritten note on the page, but stated she had never seen such a sheet or note before the deposition.

Then I recalled something from my review of the records sent to me by the patient's attorney. I found the page in question, and to my amazement, there was no notation such as was discussed in the deposition. In going through the materials sent to me, I managed to find two other such pages. One was in another plastic surgeon's records, and the other at the end of the file in a section labeled "miscellaneous." These pages, indeed, had the notation. Naturally, I was concerned.

I then wondered how the patient could forget receiving a 12 page document covering the augmentation mammoplasty. She had said, at her deposition, she would liked to have received such a document. This seemed to lend a little more credibility to her testimony.

In reviewing the document, provided in the physician's records sent to me by the patient's attorney, I noticed some fax numbers at the top of the first nine pages. I still do not know the significance of that. However, I carefully went over the signature page and that page, with the patient's alleged signature, indicated she received the 12 page document on augmentation mammoplasty which was dated Nov. 92. However, on reviewing the copy of the document provided in the plastic surgeon's records, the only date was Aug. 94. In other words, the patient allegedly signed a note indicating she had received a 12 page document dated Nov. 92, but the document in the chart was dated Aug. 94.

I consider it a breach in the standard of care to have a patient sign a document acknowledging receipt of materials dated with a specific date, but to provide the patient materials with a different date which would indicate a different document.

Now it was becoming clear that perhaps the patient didn't have total amnesia. She may, in fact, have not received all of the materials and information alleged to have been given to her.

It was my opinion that the records appeared to have been altered. This was my position at my deposition. When asked about the standard of care concerning the patient, I indicated that everything seemed okay according to the records, but considering the page with the drawing having had a self serving handwritten notation on some copies, and not on others, and that the patient allegedly having signed a a signature page indicating she had received a particular document when, in fact, the document in the chart was not the one in question, it was my feeling that everything in the physician's records were suspect and I could not believe them.

This case was settled with the plaintiff obtaining a 5 figure award.

Applicable Law

From the California Business and Professions Code:

2261. Knowingly making or signing any certificate or other document directly or indirectly related to the practice of medicine or podiatry which falsely represents the existence or nonexistence of a state of facts, constitutes unprofessional conduct.

2262. Altering or modifying the medical record of any person, with fraudulent intent, or creating any false medical record, with fraudulent intent, constitutes unprofessional conduct. In addition to any other disciplinary action, the Division of Medical Quality or the California Board of Podiatric Medicine may impose a civil penalty of five hundred dollars ($500) for a violation of this section.

However, the real problem with the apparent alteration of records is that the credibility of the physician and the physician's records are severely impaired. No doubt this is why the physician in the above case settled.