Go to navigation Go to content

If there is something damaging in your medical record, can we keep that information out at trial?



Maybe you were involved in an accident following a night of partying. Maybe you had a few too many drinks. Maybe you were taking some drugs or medication you clearly should not have been taking.

You were involved in an accident and while in the emergency room you tell the doctors and nurses about those activities that you probably should not have been engaging in.

You bring a lawsuit seeking compensation for your injuries.

Maybe it is a lawsuit for negligence where you claimed another driver was careless.

Maybe it's a medical malpractice case or even a wrongful death case here in New York.

You are concerned that your excessive drinking or partying may somehow affect the ultimate outcome in your case and how a jury will perceive your credibility.

Will this have an effect on your case?

The answer as it may.

The question the title is whether you can prevent some of the information that may be damaging to your credibility and to your case from coming into evidence during your trial.

Let's say for example you had too many drinks one evening.

You then got in your car and proceed to head home.

**I'm not even going to address in this article why that's not a good idea, but instead jump to the next set of facts.**

While you were stopped at a traffic light waiting for the light to turn green, two cars in front of you collided. One of the cars was thrown into yours causing you substantial and significant injury. You wind up in the emergency room and need emergency surgery and have been in the hospital for three weeks recuperating. You now have a permanent lifelong injury and disability because of this horrific accident.

While in the emergency room, the nurses ask you if you had anything to drink that night and you tell them truthfully you had six drinks. Your blood alcohol level registers an astonishing 1.6. Anything over 0.8 is considered to be intoxicated.

Can you keep out that damaging information at trial?

The answer is maybe.

Here's what I mean.

If the information obtained about your drinking directly affected how the doctors were evaluating your medical condition and what treatment they were providing to you, in that instance you would be likely unable to keep that information from the jury. If on the other hand those comments had absolutely nothing to do with the diagnosis and treatment for your condition, then there is a good chance that the judge will prevent that information from coming in at trial.

Why is that?

From a common sense stand point if that information had nothing to do with the doctor's obligation to diagnose and treat you, then there is no reason for the jury to consider that. The only reason the defense wants to bring in that information is to get them to believe that somehow your excessive drinking played a part in causing or contributing to the accident or maybe even your injuries.

They will likely argue that if you had been drinking, there is no way you should have been on the road to begin with. This will be a challenging argument for the defense and a very challenging argument for you and your attorney to explain away.

In any event, there are certain instances where the court will direct that information not be disclosed since it has absolutely nothing to do with the diagnosis and treatment of your medical condition.