“Freedom is not free.” The phrase is ubiquitous – - seen on bumper stickers, heard on talk radio, trumpeted by politicians and military leaders. It is also a truism, and for any who think otherwise, there is an (American) Revolutionary War, two World Wars, and a Cold War to overrule them.

While not “free,” freedom is constitutionally guaranteed, since it lies at the root of many of the provisions of our “Bill of Rights” — the first ten Amendments to the United States Constitution. One of these Amendments, in particular, the Sixth Amendment, guarantees (among other things) that persons accused of criminal wrongdoing have the right to be represented by an attorney. This “right to counsel,” as embodied in the Sixth Amendment, insures the freedom to be free from being unfairly overwhelmed by the awesome power of the government.

For that reason, the Sixth Amendment’s right to counsel may be unsurpassed, in terms of its importance to the liberty of the individual, vis-a-vis the power of the state. Therefore, anyone who cares strongly about the need to preserve individual liberty will be justly alarmed by recent efforts of the federal government to scale back the protections of that amendment.

Prosecutorial Pressure to Prevent Employee Representation: Traditionally, companies that become the subject of fraud investigations, (including most professional corporations: think medicaid “fraud and abuse”), have provided legal counsel to employees whom the government wishes to question or interrogate. Such a policy makes good sense, since wrongdoing by an employee can potentially be imputed to the employer, and since the employer usually has available to it superior financial resources with which to hire counsel. The United States Department of Justice (DOJ), however, has recently undertaken to essentially coerce employers to end the practice of affording legal representation to employees, leaving employees who lack the means to hire their own counsel without any counsel at all.

This coercion has come in the form of the DOJ offering to spare the corporate entity from being criminally indicted if it, (or, in the case of a professional corporation, he or she), “cooperates” with the investigation by refusing to provide employees with either legal counsel, or with the funds to obtain legal counsel. This DOJ policy, moreover, is a formal one, set down in 2003 in the so-called “Thompson Memo,” which provides that federal prosecutors, in deciding whether to bring charges against a corporation, may take into account (with disfavor) the corporation’s advancing of attorney fees to employees whom the government considers “culpable.”

To the extent that this policy interferes with an individual’s sixth amendment right to counsel, it represents a dangerous attack on a bedrock constitutional principle. Both federal and state courts, including the United States Supreme Court, have repeatedly held that the state’s interest in seeing that justice is done is paramount, “trumping” its interest in obtaining convictions. Frequently, those courts have also made the point that the right of an accused person to obtain high quality legal counsel protects the government’s interest in securing convictions that are both procedurally and substantively fair, which is the hallmark of a free society. The DOJ policy, however, rather than protecting that interest, serves to undercut it.

Underscoring the basic lack of fairness involved in the policy is the fact that it is apparently premised upon a number of cynical notions. First, any corporation that is faced with the prospect of a federal indictment, (and perhaps especially a professional corporation), is almost always looking at a virtual death sentence. In most cases of corporate fraud, the financial penalties, in the form of fines and restitution payments, are crippling, leaving the corporation with no real choice but to participate, (or “cooperate”), in the government’s effort to deprive corporate employees of effective legal representation.

Second, by predetermining, on its own, which employees are “culpable,” and then threatening to indict a corporation that provides those employees with legal assistance, the DOJ policy seems designed to deprive legal services to the very people who may be most in need of them.

Third, in those cases where a corporation’s initial response to a governmental investigation might be to have corporate legal counsel interview employees thought to have knowledge of the alleged wrongdoing, governmental coercion to “give up” those employees, (i.e., as a form of “cooperation”), will amount to a coerced waiver by the employees of their Fifth Amendment right to be free from self-incrimination, as well as the Sixth Amendment right to counsel.

Fourth, by “persuading” the corporate entity to essentially “cast adrift” its employees in a counsel-less sea, the government takes unfair advantage of both. While this may greatly increase the government’s chances of obtaining convictions, it will also increase the number of wrongful convictions – a result incompatible with constitutional freedom.

Fortunately, however, at least one successful challenge to the policy set forth in the “Thompson Memo” has recently been reported. In late June, 2006, in the case of U.S. v. Stein, et al., a federal district judge sitting in New York State ruled that the DOJ policy is unconstitutional. Citing many of the reasons detailed above, the court ruled that, to the extent that the policy underlying the Thompson Memo authorizes prosecutors to threaten indictment of a corporation, depending upon whether the corporation has provided legal assistance or fees to its employees concerning possible criminal charges connected with their employment-related activities, both the policy and the Memo are unconstitutional. Each violates, the court said, both the Fifth Amendment right to due process, and the Sixth Amendment right to counsel.

Therefore, although the DOJ can be expected elsewhere to continue its policy of pressuring corporations to withhold legal representation from employees that the DOJ considers “culpable,” (the Stein decision is binding only in the Federal Second Circuit’s New York Southern Division, and it will almost certainly be appealed), there is hope that, ultimately, the questionable constitutionality of the practice will be recognized throughout the land.

Indeed, the extent to which Sixth Amendment “freedom,” (i.e., from being forced to face the government without counsel), shall remain “free,” (i.e., guaranteed), may well depend on the eventual fate of the Thompson Memo, as decided by the federal courts.

Glenn Michael Simmington, Esq., of Cline, Cline & Griffin, specializing in criminal defense, medical malpractice defense, and constitutional litigation.

by Glenn Simmington, Esq.

Cline, Cline & Griffin, P.C.,

Introduction.

Literally volumes have been written over the years regarding the importance of medical record-keeping, both to the delivery of quality patient medical care, and to the protection from liability of healthcare providers when a particular patient’s medical care is followed by a “poor result.” Concerning the later, most of the literature had focused upon the avoidance of medical malpractice claims. Alternatively, in those instances where a malpractice claim is brought despite the existence of accurate and complete medical charting, the importance of such charting in defending the claim has been the subject of countless practice tips.” Thus, there is no intent to here to “rehash” what is essentially “old news” in this area.

Instead, the focus here would be on a rarely-discussed Michigan Statute which, while providing no right of private action, (i.e., to bring a civil suit) for its violation, actually imposes criminal penalties for record-keeping actions produce misleading, inaccurate or deceptive patient records.

Michigan Public Act 210 of 1992. This statute, part of the Michigan Penal Code, prohibits two types of deceptive record-keeping practices, and some violations, depending on either the identity or the mindset of the violator, can be punished as felonies. Entitled “Intentional inclusion in patient medical records or charts of misleading or inaccurate information; intentional alteration or destruction of medical records or charts,” MCLA 750.492a, Section (1), makes it a felony for a health care provider to

“‘intentionally [or] willfully’ . . . place or direct another to place in a patient’s medical record or chart misleading or inaccurate information regarding the diagnosis, treatment, or cause of a patient’s condition [while knowing that the information is misleading or inaccurate].” Whereas the title of the Act speaks only of “intentional” behavior, section (1) makes clear, further, that even “recklessly” placing such misleading or inaccurate information in a patient’s medical record (or directing another to do so) constitutes a criminal act. Where only “recklessness” is involved, however, (and one might reasonably ask how a person could “recklessly” direct another to include false information in a chart, while knowing it to be false), the violation, if committed by a health care provider, is reduced to a “high misdemeanor,” i.e., one punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.

Similarly, if someone other than a health care provider commits such a “deceptive information inclusion” violation, but does so “intentionally or willfully,” that person is also guilty of a one-year and/or $1,000.00 penalty misdemeanor. Finally, should such a person be found guilty of this section of the statute on the basis of his or her “recklessness,” only, that person could face a jail sentence not to exceed 90 days, and be subject to a fine of not more than $500.00.

Section 2 of the Act, while it also makes certain deceptive record-keeping behavior either a felony or a misdemeanor, does not do so on the basis of whether the behavior is “intentional or willful,” on the one hand, or “reckless,” on the other. Instead, this section, which provides that “a health care provider or other person shall not intentionally or willfully alter or destroy or direct another to alter or destroy a patient’s medical records or charts for the purpose of concealing his or her responsibility for the patient’s injury, sickness, or death,” makes the violation a felony if the person committing it is a health care provider, and a misdemeanor, (of the “one-year/$1,000.00” variety), if the violator is someone not in the healthcare profession. Since no provision is made for “reckless” alterations or destruction, (for the purpose of concealing one’s responsibility for a patient’s injury or otherwise), the government, in order to obtain a conviction under this section, would presumably need proof of a defendant’s actual intention to conceal his or her role in a given patient’s untoward outcome. (Such a higher standard of proof requirement makes sense, of course, where only “high misdemeanors” and felony charges, but not 90-day misdemeanors, are at issue.)

Occasions do arise, of course, where legitimate reasons exist for the supplementation, alteration, or destruction of patient medical records. Standard procedures for error-correction, “late entry” additions, and electronic storage are well-known (or should be) to the medical community, and the statute makes exception for these legitimate, non-deceptive practices. Exceptional care must be taken, however, when engaging in these activities, that neither the intent nor the effect of carrying them out is to create a medical record which contains inaccurate or misleading information concerning the subject that Public Act 1992 No. 210 addresses. Depending upon whether a particular Court or Prosecutor wishes to expansively define the concepts of “intentional,” “willful,” and “reckless,” a failure to exercise such care could result in serious criminal exposure for the record-keeper.

Conclusion.

Just as it is important to keep accurate and complete patient medical records in the context of avoiding exposure to administrative actions and civil suits, or, where strict avoidance is impossible, in the defense of such actions, the failure to fairly and accurately document a given patient’s chart can expose a person charged with the obligation to keep such records to potentially devastating criminal charges–charges which, if proven, would undoubtedly involve collateral, licensing consequences. That the Michigan Statute outlined above is seldom–discussed does not mean that prosecutors and judges are unaware of it, and it has, on occasion, served as the basis for actual criminal investigations in the State of Michigan. Thus, an awareness of, and the need for compliance with, the statute should be essential components in the training of not only healthcare providers, but also ancillary personnel.