Kim Johnson was nervous as she sat down at her dining room table in January 2015, holding an unopened letter from the radiology department at Fleming County Hospital in Flemingsburg, Ky.
Breast cancer had killed Johnson’s mother years earlier, a painfully slow death that took its toll on her entire family. The prospect of this happening to her was all Johnson had been able to think of since finding a tender lump in her right breast weeks before, which had prompted her doctor to send her for a mammogram.
If she got sick, who would continue to feed the horses and chickens on the 101-acre family farm that she and her husband ran in northeast Kentucky? Who would take care of the three young children they had recently adopted after raising five of their own?
Johnson, 53 at the time, says he tore the envelope, unfolded the letter and started reading. She says her eyes are fixed on four words in the first sentence: “no evidence of cancer.”
“Oh my God,” Johnson remembers thinking. “I dodged a bullet.
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Her husband, Delbert, choked when she called him to tell him the news. That night, they loaded the kids into the car and drove to the Tumbleweed Tex Mex Grill to celebrate.
Only, as the medical experts who reviewed his records later told him, there had been a terrible mistake.
As Johnson dined with her family, a cancerous tumor was silently growing inside her. The warning signs were present in the first x-rays of her breast – enough to at least warrant further testing, according to doctors who then reviewed the images. But someone at the hospital sent the wrong letter, Johnson’s lawyers claim, giving Johnson the go-ahead instead of ordering him to return for a follow-up exam.
By the time Johnson discovered the gap 10 months later – thanks only to her own insistence on seeking a second opinion after the pain in her chest worsened – her new doctors feared it was too late to save her .
Johnson didn’t know it at the time, but it was the start of a year-long battle not only against a deadly disease, but with a healthcare system and medical workers who Johnson’s lawyers say have made extraordinary efforts to cover up their mistake.
Johnson – who describes herself as “not a person who sues” – ultimately took legal action because she wanted to know why her cancer hadn’t been caught sooner. It took three years of litigation before Johnson, his attorneys, and a digital forensics expert who reviewed his electronic patient records were able to piece together what they believe happened: in the days and weeks after Johnson filed suit. In a medical malpractice lawsuit in 2016, two hospital workers opened her electronic records and edited them, removing evidence from the spurious letter claiming she was cancer-free, Johnson’s lawyers say.
The hospital then created the fake letters and produced them as part of the court case claiming to have ordered Johnson to request further testing, Johnson alleges in court documents. When questioned under oath, the doctor who oversaw Johnson’s medical care said the newly generated letters proved Johnson was responsible for his own delay in treatment, court records show.
Andrew Garrett, the forensic expert who reviewed Johnson’s medical records on his behalf, has worked on hundreds of malpractice cases, for patients and hospitals, to find evidence buried in electronic records. He described cases like Johnson’s as having a “smoking gun” hidden in the archives.
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A spokeswoman for LifePoint Health, the hospital chain that bought Fleming County Hospital seven months after Johnson’s mammogram in 2015, declined to comment, noting that Johnson’s trial is still pending before the Kentucky Supreme Court.
Lawyers for the hospital chain have dismissed Johnson’s claims in legal filings and in court hearings as “a conspiracy theory” that cannot be substantiated because the electronic recording system the hospital was using at home. he era of mammograms is now obsolete and prone to problems. The hospital recognized an anomaly in Johnson’s medical records, but said it was the result of a ‘clerical error’ by an employee who mistook Johnson for another patient of the same last name.
The hospital hired a separate digital forensics expert to review Johnson’s medical record, as Garrett did, but the hospital did not submit findings to the court, according to court records.
Johnson’s lawyers said they did not believe the hospital’s explanations. Neither did his family.
“I tend to trust doctors and professionals, even the system,” said Delbert Johnson. “But they failed Kim and tried to hide it.
The alleged cover-up in Johnson’s lawsuit highlights a growing threat to patients in the age of electronic medical records: the potential manipulation of their records by healthcare providers to hide errors and minimize liability.
NBC News spoke to more than 20 patient advocates, expert witnesses and malpractice lawyers who described dozens of cases over the past decade that were based on discovering changes to a patient’s record. In some cases, nurses’ notes had been deleted. In others, the procedures that the patient should have undergone, but were not, were recorded after his death, giving a false picture of the care he received. Collectively, the patients in these cases or their surviving families have received tens of millions of dollars in damages.
As in Johnson’s case, these changes are often only discovered through the dogged and costly efforts of medical malpractice lawyers and digital forensics experts to gain access to what is known as the “audit trail” of the file. patient, which shows who accessed the record and how they changed it.
It’s impossible to know the extent of the problem: Healthcare providers almost always require patients or their families to sign a nondisclosure agreement as a condition of any legal settlement. And hospitals routinely fight to prevent audit trails from being introduced in court, arguing that the records are so complex that it’s too expensive and too onerous for healthcare providers to disclose.
“Cases literally double in complexity because of these issues,” said Matthew Keris, a Pennsylvania attorney specializing in defending health care providers in malpractice lawsuits. He argues that audit trails rarely reveal significant evidence to a case. Yet hospitals like the ones he represents often end up spending tens of thousands of dollars analyzing records once they are presented as evidence, unnecessarily increasing the cost of litigation and benefiting no one.
But some experts say cases like Johnson’s are more common than people think.
Garrett, the forensic expert, is one of the few specialists in the United States with expertise in this emerging technical area. He said his company worked on around 500 medical malpractice cases in seven years and found significant changes in the patient’s chart that favored the hospital in 85% of them.
In about a quarter of them, the revision history reveals what Garrett describes as a “complete cover-up.”
A grim prognosis
Although the January 2015 letter initially alleviated Johnson’s fears of having cancer, it did nothing to stop the pain in her right breast. His primary care physician, Dr Amanda Applegate, had told him that it was likely a staph infection and that he would be cured with antibiotics.
Applegate, who ordered Johnson’s mammogram, admitted in a 2017 deposition that she never followed to find out the results, arguing that it was the responsibility of the radiologist who took the scans to share the results with Johnson. Applegate and its lawyers did not respond to messages seeking comment.
Unaware that her mammogram had indicated the need for further testing, Johnson spent nine months trying different prescriptions to treat the infection, but the lump in her breast continued to grow. Finally, in September 2015, Applegate wrote him a referral for another review.
On a cloudy fall day, Johnson walked over 80 miles to St. Elizabeth’s Fort Thomas Hospital in northern Kentucky near Cincinnati. After examining Johnson’s breast, Dr Heidi Murley ordered an emergency biopsy. Days later, Johnson returned to the hospital to receive the diagnosis she dreaded: the doctor told her she had stage 4 cancer and it had spread from her chest to her lymph nodes and his bones.
The news came with a grim prognosis. An oncologist advised her to put her things in order. Given the extent of the cancer spread, she might only have six months to live – maybe a year.