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GP later altered patient’s records

02 Aug 2016

Ed Madden, BL, looks at a recent England and Wales High Court case in which a GP appealed against a decision of a Fitness to Practise Panel that his name be erased from the medical register after he retrospectively altered a patient’s medical records

In July 2016, the England and Wales High Court considered an appeal by a general practitioner (GP) against a decision of a Fitness to Practise Panel of the General Medical Council (GMC) to erase his name from the medical register. This followed a finding that he had acted dishonestly in retrospectively altering the electronic medical records of one of his patients, who died of cancer in July 2007.

When the matter came up for hearing, the Court was told that Mr A consulted his GP, Dr Robert Jenyo, at his practice in December 2006 complaining of mid-back pain. Towards the end of February 2007, when he continued to complain of such pain, the GP referred him for physiotherapy. In early May 2007, the physiotherapist noted “recent weight loss, and pain that appeared not to be mechanical”. Mr A was referred for a chest x-ray and blood tests. Having reviewed the x-ray results, Dr Jenyo became aware that Mr A’s back pain and weight loss were related to a suspected tumour.

The first set of amendments to the medical records was made on May 9, 2007. This followed his review of the x-ray results and “a heated telephone conversation” with the patient’s wife, during which she reminded him of the dates on which her husband had complained to him of back pain.

Amendments
The amendments were to entries first made on December 27, 2006 and February 26, 2007. To the former entry he added: “no chest or abdomen pain, no hx (history) of wt (weight) loss”. To the latter entry he added: “no red flag sxs …symptoms)” and “Review sos”.

The second set of amendments was made on May 11, 2007. This followed a further telephone call with the patient’s wife, during which Dr Jenyo also spoke to Mr A’s son, a medical doctor. He was critical of his father’s care.

The entries that were amended on this occasion were originally made on January 10, 2007 and February 13, 2007. To one of the entries for January 10 the words “no cervical spine tenderness” were added. The remaining alterations added references to low mood, anhedonia, and Mr A’s inability to eat and sleep properly.

Three-year gap
The third and most extensive set of amendments was made some three years later on May 27, 2010, by which time Mr A’s family had issued medical negligence proceedings against Dr Jenyo. The amendments consisted of both additions and deletions to a variety of entries.

By way of example, the January 30, 2007 entry, which originally stated “depressive episode still feeling low”, was amended to read “depressive episode back and muscle pain much better now, but still feeling low”.

Pic: Getty Images

Dr Jenyo never disputed that he amended the records. His explanation for doing so was to the effect that the amendments were made in order to provide a more accurate picture of the consultations.

The Fitness to Practise Panel did not accept his explanation and did not regard him as a credible or reliable witness. They found that the amendments created a significantly different clinical picture of Mr A’s health from that originally recorded. The amendments were neither dated nor annotated and would only become apparent on audit.

In the High Court, counsel for Dr Jenyo submitted that there was “a fundamental flaw” in the findings of the Panel because it failed to give sufficient weight to a number of issues, including the fact that the records were electronic and that the surgery’s software was set up to reveal any subsequent amendments to the original records. The date and author of such amendments “were indelibly recorded on the system”.

Giving the judgment of the High Court, Mrs Justice Andrews said that counsel’s submission amounted to an argument that his client was unlikely to have made the amendments in order to deceive, because his behaviour was bound to come to light if the altered records were not taken at face value and an audit was undertaken. She disagreed with the proposition that this was a pointer, let alone a strong and unequivocal pointer, in favour of an innocent but naïve attempt to clarify matters relating to the consultations.

A dishonest person in the doctor’s position “might simply take a gamble on the possibility that there might never be an audit; or believe that he could bluff his way out of trouble by giving the ‘innocent’ explanation if an audit did take place”, she added.

Increasing criticism

The judge said that in terms of the overall picture, the Panel had concluded that the amendments were triggered by the doctor coming under increasing criticism for his care of Mr A, and then being faced with litigation. They were satisfied that the amendments were made in the knowledge that this would give rise to a misleading impression of the patient’s health, and support the doctor’s defence to the medical negligence proceedings.

The Panel’s conclusion that the GP was dishonest was a long way from being contrary to the weight of the evidence.

The High Court went on to reject the appeal.

Reference
: [2016] EWHC 1708

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Click here to view the full article which appeared in Irish Medical Times: Opinion