Legal Background

The court noted that punitive damages serve a dual purpose of punishing the offending party for wrongful conduct and deterring others from engaging in similar conduct. It concluded that Dr E’s act of destroying the scribble notes after receiving a letter from the plaintiff’s attorney was an attempt to evade potential medical malpractice liability. The court held that “where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort to evade medical malpractice liability.” The court concluded that it was undisputed that Dr E had destroyed her handwritten notes, and because of this destruction the content of the notes cannot be proven. The court did, however, reduce the punitive damages to $1.2 million.

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Protecting Yourself

This case is a great example of not just the importance of note taking, but the importance of taking notes properly. Whenever possible, notes should be made in the patient’s file contemporaneously with the exam, rather than at a later date, when memory may have failed, or scribbled notes may be hard to decipher. Dr E made a terrible mistake by waiting until she heard from the plaintiff’s lawyer to type her notes into the patient’s record, and then destroying the original notes. This clearly cast suspicion on the content of the original notes, content which could not be verified because the originals were gone.

In addition, Dr E made a terrible error when she failed to consider type 1 diabetes in the child and failed to educate the parents about the dangers of diabetes and what dangerous symptoms to be aware of. This error was compounded by the destruction of the original notes, making it impossible to confirm what had actually happened at those appointments. Do not discard original notes, especially in a situation where you think you may be sued for malpractice.