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Showing 2 posts from April 2018.

Court Holds Alteration of Medical Record does not Create Inference of Falsification

Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707

We're going to begin exploration of this recent Illinois decision, by referencing one of our favorite movies: The Verdict (1982) starring Paul Newman. In the movie, Newman's character, lawyer Frank Galvin, wins a medical malpractice trial on behalf of Deborah Anne Kaye against St. Catherine Leboure Hospital. During the trial, Galvin elicits testimony from Nurse Kaitlin Costello Price that the patient had eaten just one hour before a surgery during which she aspirated, resulting in her paralyzation and permanent vegetative state. On cross-examination from defense counsel for the Hospital, Nurse Kaye produces a photocopy of the original medical record which proves she had noted the time at which the patient last ate, as well as that the record had been altered by an anesthesiologist, Dr. Robert Towler, to conceal that fact. While the able defense attorney convinces the trial judge to suppress evidence of the altered record—as well as to issue an admonishing instruction to the jury to disregard all Nurse Price's testimony—the jury renders a guilty verdict, and even asks if it can increase the amount awarded to Mrs. Kaye's family.

With the advent of electronic medical records and audit trails, the ability of healthcare providers to deliberately alter medical records with the intention of concealing harmful information—all without being noticed—is limited at best. But what happens when a known alteration of a medical record calls into question the validity of a material fact? Is evidence of the alteration admissible? Does such evidence create an inference of falsification? These issues were addressed in Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707. More ›

Provider Defending a ZPIC Audit Fights Back With Significant Victory at Fifth Circuit

Imagine as a lawyer having to tell your client that the practice that they spent their career building may very well go bankrupt, without even the chance to have their day in court. That was exactly the situation at issue for a medical practice subject to a ZPIC audit. At issue was the ability of CMS to collect on alleged overpayments before final adjudication.

What the practitioner did in a case decided by the Fifth Circuit a few weeks ago provides a game plan for all providers confronting similar circumstances. In Family Rehabilitation Inc. v. Azar, attorneys representing the practice sought an injunction against CMS precluding the agency from recouping the alleged overpayment until the appeal had been decided by the Administrative Law Judge. The injunction was dismissed at the lower court level, but the group appealed the case and won. More ›

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