Criminal Penalties for Improper Medical Record-Keeping
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.
