How Do You Prove Fraud and Deceit by Physicians and Dentists?
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To show that a doctor committed fraud or deceit, whether in giving you advice, altering clinical records, or helping you with a case, you have to show the following:
1. The doctor knew, or should reasonably have known, the information was false or the records were altered.
2. The doctor intended that you rely on it, and you believed it was true.
3. You based your decision or action on the belief that it was true.
4. You suffered an injury or financial loss because of your reliance on the doctor’s misrepresentation. For example, you consented to surgery or delayed filing a malpractice suit until after the time limit ran out.
Destruction of evidence is a crime and so is tampering with a witness. And, you are now asking yourself why a doctor who alters clinical records, or threatens your expert witness with political reprisals if he testifies for you, cannot be fined or sent to jail. The answer is that he can. And, anybody else who tried it would probably be punished with a fine or jail sentence. But, doctors seem to get preferential treatment from the courts. Although altering clinical records and intimidation of medical expert witnesses or dental expert witnesses happens every day, it would be hard to find any instance of a doctor ever having been punished for doing them.
In a West Virginia case, the doctor called the patient’s expert witness and made threats against his life, if he testified against him. When the patient’s lawyer complained to the court, the judge had a chat with the doctor who explained that what he really meant was the expert would “get killed” by being embarrassed and humiliated on the witness stand. The judge agreed with him. End of complaint.
What about the doctor who offers to help you, then
deliberately destroys your case? You can also recover from him, and this will be dealt with later.
To show fraud in obtaining your consent, or in concealing the effects of medical malpractice or dental malpractice, you must have some proof, either statements made in the presence of a reliable witness or a promise in writing. If it is just your word against the doctor’s word, it tends to turn into a “shouting match”, which the doctor usually wins.
Fraudulent alteration of clinical records can be established by a medical expert or dental expert or by an authenticator of disputed documents (handwriting expert). In the New Jersey case mentioned earlier involving the neurosurgeons, the medical expert witness for the patient spotted the typist’s notations that the documents had been dictated a year later and must have replaced the originals, which had been destroyed. In a Long Island case, the plaintiff was able to prove the doctor had altered the medical records to cover his malpractice and deceive the court. The jury awarded punitive damages, in addition to compensatory damages.
Punitive damages are not covered by the doctor’s malpractice insurance. Therefore, if you discover your expert has conspired against you, or the records have been altered or destroyed with intent to deceive, it gives your lawyer leverage.
The Rule Is: In order to plead fraud or deceit, you must show there was a conspiracy between the doctors or the clinical records were deliberately altered with the intention of defeating your case. Just because the doctors know each other, or are friends and have discussed your case, or because records are lost or edited in preparation for trial, will not do it. You must show deliberate intent to deceive you.