Court found records discrepancies by Finkelstein in '04

BY MELANIE LEFKOWITZ | melanie.lefkowitz@newsday.com

9:17 PM EST, November 29, 2007

Dr. Harvey Finkelstein settled a malpractice case in 2004 after acknowledging that the plaintiff's original medical records -- where he'd noted that the patient was HIV-positive -- did not match a set he brought to court.

Immediately after his testimony, Finkelstein settled with Peter Cicero, a Bayville man who since has died of hepatitis C, for $975,000, according to Cicero's lawyer and court records.

This revelation comes as Finkelstein's infection-control practices and record-keeping are under increased scrutiny by authorities. Officials were forced last week to issue a statement urging anyone who received injections from Finkelstein to get tested for bloodborne diseases after their earlier notifications -- based on records provided by Finkelstein -- resulted in hundreds of people calling in to say they were his patients but had not received letters. Finkelstein is also the subject of a criminal investigation by the Nassau district attorney's office.

At the October, 2004 trial, Finkelstein suggested the records discrepancy could have stemmed from confusion over copies he made for the hospital.A spokeswoman for Finkelstein did not return calls.

Finkelstein testified under oath that his chart had no information about Cicero's HIV. Cicero's lawyer then showed him a copy of Cicero's medical history, taken during his first visit to Finkelstein's office, and it noted in the doctor's own handwriting that Cicero was HIV-positive.

"Tell me what is written [in that record] that is not written in your office record," said Cicero's lawyer, Gerald Mondora of Manhattan, according to a court transcript.

"Positive HIV," Finkelstein said.

Claudia Hutton, a spokeswoman for the state Health Department, said the department was not aware of Finkelstein's 2004 testimony. She said she could not legally comment on whether it could, or would, trigger an investigation.

Cicero was HIV-positive when he first visited Finkelstein in September 2000 for treatment of his chronic lower back pain. A botched epidural procedure left him partially paralyzed, he claimed in a 2001 lawsuit against Finkelstein. Later diagnosed with hepatitis C, he died at age 49 in 2005.

Mondora said he obtained Finkelstein's records, including the medical history containing his HIV status, while preparing for the trial. He said he was surprised when Finkelstein, who brought his own copies of Cicero's records to the trial, told his own lawyer during direct questioning that his records contained nothing about HIV.

"We asked him about his past medical history. He denied any previous medical conditions," Finkelstein testified on Oct. 26, 2004, according to a court transcript.

"Let me stop you there, doctor," Mondora said. He then produced a Sept. 26, 2000, document from North Shore University Hospital, marking it Plaintiff's Exhibit Number 2.

"Now doctor, what's been marked as Plaintiff's 2 in evidence is in many ways similar to the report that you have brought to court as part of your file; correct?" Mondora asked Finkelstein at the trial.

"Correct," Finkelstein responded.

"But there's a difference in Exhibit -- Plaintiff's Exhibit 2 from what you brought to court; true?"

"Yes."

"Now, isn't it a fact that Plaintiff's Exhibit 2 says, in your handwriting, that Mr. Cicero had HIV?"

"Yes," Finkelstein said.

Finkelstein's lawyer at that trial, Anthony Heller of Garden City, said yesterday he could not comment without Finkelstein's authorization.

The revelation about the discrepancy between the records marked the end of the trial, Mondora said. The settlement agreement was entered two days later. "We didn't have to call our experts," he said. "That was the end of it."

Asked at the trial what happened to the original of the document that listed Cicero as HIV-positive, Finkelstein said he wasn't sure.

"To be honest, I've never -- I don't know," he said, according to the transcript. A few exchanges later, he said: "Well, the only thing I can imagine is that I rewrite these notes to send to the hospital; either one of the two versions got sent to the hospital for their records and one got put in my record."

Staff writer Ridgely Ochs and Patrick Whittle contributed to this story.