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Fraud and deceit usually occur in one of the following forms:

1. Assuring the patient that a diagnosis known to be wrong is correct.

2. Deliberately making a false prognosis as to the risks or outcome of treatment, especially if it is t

o persuade you to submit to surgery, treatment, or expense you would not have had otherwise.

3. Falsely representing what happened while the patient was unconscious or under anesthesia.

4. Falsely representing what was done during surgery and what organs or tissues were removed.

5. Pretending to have skills or training which he does not have.

6. Concealing vital information or a material fact, such as having left a sponge, instrument, etc. inside a patient.

7. Conspiring with another doctor, or any other person, to mislead or deceive you.

Effects of Fraud and Deceit by Physicians and Dentists

Earlier it was stated that a medical malpractice case or a dental malpractice case is not a criminal case, and the court is not going to punish the doctor beyond making him pay for your losses and pain and suffering.  All you can hope to be awarded is what is known as compensatory damages.  That means compensation for the following damages:

1. Your medical and other expenses.

2. Loss of income or the support you would have received from the person who was disabled or died.

3. Pain and suffering, including emotional suffering.

However, if a doctor is guilty of fraud and deceit to induce you to undergo treatment or conceal malpractice, or if he alters or destroys medical or dental records and you discover it, it can strengthen your case in the following ways:

First, jurors do not like doctors, who do these things and will likely award damages.

Second, the judge or jury can award punitive damages, which are in addition to your compensatory damages and are designed to punish the doctor.  They are like a fine, not just to compensate the injured person, but to teach the wrongdoer a lesson.  They are actually a fine, but not like a criminal fine, because the money does not go to the court.  The money from punitive damages goes to the victim.

Third, if a doctor uses fraud or deceit to obtain your consent to treatment or a surgical procedure, the consent is null and void.

Fourth, if the doctor conceals his malpractice after the treatment, it tolls the statute (stops the

clock) on the time limit for you to file your case until you find out about the doctor’s fraud.  But, it has to be active concealment, such as lying to you.  If the doctor failed to tell you there was malpractice that does not count.  The United States Constitution says he does not have to incriminate himself or testify against himself.

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l” style=”text-align: justify;”>Fraud and deceit by physicians and dentists are serious words. They mean the doctor either defrauded you or deliberately deceived you. There are usually four ways in which a doctor can be guilty of these unethical actions.

First, the doctor intentionally misleads you as to the nature

of your condition and what the treatment involves.

A North Carolina surgeon told a patient that a heart operation held no risk. The patient was not yet 40 years old, the operation was not really necessary, and he could have lived for many years without it. But, since the doctor had assured him there was not any risk, he decided to go ahead with it, just to be on the safe side. After the operation, the patient developed an air bubble to the brain and died.

Postoperatively, the patient’s family found out the operation was considered dangerous by heart surgeon, and as many as 10% of the people who have it die. Even though the doctor had performed the operation correctly and had not committed malpractice, he had willfully concealed the dangers of the operation to get the patient to agree to the surgery. The family sued, charging that the doctor had deliberately deceived the patient about the risks, and he did it for the money. The jury thought so, too.

Second, the doctor intentionally misleads you as to what went wrong with a treatment and gives you a false story to keep you from suing him, until the statute of limitations (time limit) runs out.

Third, the doctor alters or destroys his office records, or the hospital records, in order to conceal the truth from your lawyer and the jury. This is known as spoliation of evidence and is the most serious of all.

In a New York case, a woman was sent home from the hospital with pneumonia and she died. When the family’s lawyer obtained the hospital chart, all the reports of laboratory tests were normal. Since that did not square with the patient’s condition, the lawyer obtained a court order to see the original records in the hospital laboratory. It turned out that when the doctor was notified he was being sued for medical malpractice, he went to the hospital and removed the original laboratory report slips that showed his patient had a raging infection. He substituted forged reports that showed a normal white blood count when he sent her home. When that was brought out at trial, the jury not only gave the victim’s family an award for compensatory damages but added an amount for punitive damages, to punish the doctor for attempting to deceive the court.

Since reports of surgical operations and discharge summaries are very important, most hospitals require doctors to dictate the report of an operation before he leaves the surgical suite and the discharge summary within 48 hours after his patient is discharged from the hospital. The dates these reports are dictated and transcribed are indicated by a notation in the lower, left corner that read like this: D: 01/22/09, T: 01/24/09.

In a New Jersey case, a team of neurosurgeons botched a major brain operation, and the patient died. When the patient’s family filed a lawsuit for medical malpractice, and their lawyer obtained the medical records from the hospital, he discovered the report of the operation and the discharge summary had been dictated and typed a year after the patient died and two months after the lawsuit had been filed. Under hospital policy, the doctors would have been suspended and would not have been able to admit patients to the hospital, if the chart had not been completed. But, they had been admitting patients all along, since the patient died, so it was obvious they had destroyed their original reports and substituted falsified reports. The secretary was honest and noted the correct dates she typed the revisions and exposed the doctors’ scheme to deceive the court. The patient’s family won at trial.

Not all cases of alteration of medical records and spoliation of evidence are as easily detected as in this New Jersey case. Sometimes it requires an Authenticator of Disputed Documents (handwriting expert) to prove it to the satisfaction of the court. In a Virginia case, the authenticator found that the doctor had used a pen that was not even manufacturer until after the dates on his handwritten note. If you can show medical records have been altered or destroyed, it puts you in a strong position.

Fourth, a doctor offers to help you with your medical malpractice case or dental malpractice case or promises to be your expert witness. At the last minute, he fails to appear to testify or changes his opinion on the witness stand.

A Utah lawyer was suing an anesthesiologist for medical malpractice, which resulted in the death of a patient during surgery. The surgeon, who had performed the operation was critical of the anesthesiologist and offered to act as the lawyer’s medical expert witness. The lawyer did not bother to look for another expert or obtain any other opinion. The surgeon was also helpful in preparing an airtight case against the anesthesiologist, and there was never any question that the surgeon was responsible, too.

Three weeks before the case was due to go to trial, the surgeon announced that he would not be able to act as the expert witness “for personal reasons.” When the lawyer went to an independent expert, who was located in another city, he was astonished to learn that the surgeon, who had been so helpful, was the one who had committed malpractice and should have been sued. The lawyer did not have a case at all against the anesthesiologist. The surgeon had led the lawyer along until it was too late to sue him. When confronted, the surgeon admitted he never had any intention of testifying. It was too late to find a substitute expert, and the case was lost.

     
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